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Case 3:17-cv-00808-TSL-RHW Document 74 Filed 01/24/19 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT


FOR THE SOUTHERN DISTRICT
NORTHERN DIVISION

TONY AND KAYLA LINDSEY


ON BEHALF OF THEIR MINOR SON,
T.L. PLAINTIFFS

VS. CIVIL ACTION NO. 3:17-cv-808-TSL-RHW

RANKIN COUNTY SCHOOL DISTRICT


and “JANE” PINNIX in her official
and individual capacity, KELLY SERVICES,
INC., and JOHN DOES 1-5 DEFENDANTS

______________________________________________________________________________

VOLUNTARY STIPULATION OF DISMISSAL WITH PREJUDICE


______________________________________________________________________________

COME NOW, Plaintiffs, Tony and Kayla Lindsey on behalf of their minor son, T.L., by and

through counsel of record and pursuant to Rule 41(a)(1)(ii) of the Federal Rules of Civil Procedure,

and hereby provide notice that they are voluntarily dismissing with prejudice all claims which were

asserted or could have been asserted in the above-referenced action against Defendant, Rankin

County School District, with the parties to bear their own attorneys’ fees and costs.

THIS, the 24th day of January, 2019.

Respectfully submitted:

/s/ Carlos E. Moore


Carlos E. Moore, Esq. (MSB # 100685)
Tucker Moore Group, LLP
306 Branscome Drive
P.O. Box 1487
Grenada, MS 38902-1487
662-227-9940 - phone
662-227-9941 - fax
Email: carlos@tuckermoorelaw.com
Attorney for Plaintiffs

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Case 3:17-cv-00808-TSL-RHW Document 74 Filed 01/24/19 Page 2 of 2

Agreed to by:

/s/ Walker R. Gibson


Walker R. Gibson, Esq. (MSB # 100051)
COPELAND, COOK, TAYLOR & BUSH, P.A.
Post Office Box 6020
Ridgeland, Mississippi 39158
1076 Highland Colony Parkway
600 Concourse, Suite 100
Ridgeland, Mississippi 39157
(601) 856-7200 - Telephone
(601) 856-7626 - Facsimile
Email: wgibson@cctb.com
Attorney for Defendant, Rankin County School District

CERTIFICATE OF SERVICE

I, Carlos E. Moore, Esq., do hereby certify that I have on this date served via electronic mail,

a true and correct copy of the above and foregoing document to the following counsel of record:

Walker R. Gibson, Esq.


wgibson@cctb.com
Attorney for Rankin County School District

Roy A. Smith, Jr., Esq.


Steven J. Griffin, Esq.
rsmith@danielcoker.com
sgriffin@danielcoker.com

Oluwafunmito P. Seton, Esq. (admitted pro hac vice)


oseton@seyfarth.com
Attorneys for Kelly Services, Inc. and Sherry Pinnix

This, the 24th day of January, 2019.

/s/ Carlos E. Moore


Carlos E. Moore, Esq.
Attorney for Plaintiffs

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Case 3:17-cv-00808-TSL-RHW Document 68
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IN THE UNITED STATES DISTRICT COURT


FOR THE SOUTHERN DISTRICT
NORTHERN DIVISION

TONY AND KAYLA LINDSEY


on behalf of their minor son, T.L. PLAINTIFFS

v. CAUSE NO.: 3:17-cv-808-TSL-RHW

RANKIN COUNTY SCHOOL DISTRICT,


“JANE” PINNIX in her official and
individual capacity, KELLY SERVICES, INC.,
and JOHN DOES 1-5 DEFENDANTS

____________________________________________________________
MEMORANDUM BRIEF IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT BY
RANKIN COUNTY SCHOOL DISTRICT
____________________________________________________________
Defendant Rankin County School District (“RCSD”) submits this Memorandum

Brief in support of its Motion for Summary Judgment. Because there is no legal or factual

support for any of the claims against RCSD, this Court should grant the Motion and

dismiss RCSD.

MATERIAL AND UNDISPUTED 1 FACTS

This case arises out of the use of the word “hang,” intended as part of the longer

expression “hang him out to dry.” According to the Lindsays, who filed this lawsuit on

behalf of their son T.L., the use of that word means that RCSD violated the Mississippi

1RCSD disputes several facts alleged by T.L. and expects, if a trial occurred, to be
vindicated by a jury. But a trial is unnecessary. Because these factual differences do not
affect the legal flaws in T.L.’s case, for purposes of summary judgment, RCSD presents
and—again for this motion only—adopts T.L.’s version of the facts when it differs from
RCSD.
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Tort Claims Act, committed negligence per se and general negligence, intentionally or

negligently inflicted emotional distress on T.L., negligently supervised, hired, trained, and

retained Kelly Services (which provides substitute teachers to Northwest Rankin High

School 2), and violated T.L.’s civil rights and due process through race discrimination.

Exhibit 1, Amended Complaint, pp. 4-8. RCSD denied these claims. See Doc. 8, Answer,

pp. 3-6.

In April 2017, when T.L. was a senior at Northwest Rankin High School, he took

Personal Finance. Exhibit 2, Deposition of T.L., p. 48. That same spring, Sherry Pinnix

was serving as a long-term substitute teacher for that course, and T.L. was in her class.

Exhibit 1, ¶¶ 8-9; Exhibit 3, Deposition of Sherry Pinnix, p. 47.

On April 5th, T.L. was talking during Personal Finance. Exhibit 2, p. 55. Another

student, L.A., 3 told T.L. to be quiet. Id., p. 53. T.L. threatened to hit L.A. Id., pp. 58, 62,

75. According to T.L., L.A. had shown him “blatant disrespect” by “trying to take up for

the teacher….” Id., p. 59.

L.A. asked Ms. Pinnix if he could defend himself if T.L. hit him. Exhibit 3, pp. 52-

53. According to Ms. Pinnix, she answered: “No. If he comes over here and does anything,

we will hang….” Id., p. 53. According to T.L., she said “If he touches you, we’ll hang him.”

Exhibit 2, p. 53.

At this point, a young woman in the class told Ms. Pinnix that she can’t “[s]ay the

word ‘hang.’” Exhibit 3, p. 53. Ms. Pinnix realized she hadn’t finished her statement and

2 Until January 2017, RCSD employed Ms. Pinnix. After Defendant Kelly Services
took over, she became its employee and an independent contractor with RCSD.
3 T.L. referred to this student as L.A.; Ms. Pinnix called him C.A. It is the same

student.
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understood that what she said could be misinterpreted; she then explained to the class

she meant to say “we will hang him out to dry. 4” Id., pp. 53-54.

Ms. Pinnix called for the principal, who, along with the vice-principal, conducted

an investigation, gathered statements, and interviewed students. Exhibit 4, Deposition of

RCSD, pp. 63-64; Exhibit 3, pp. 54-55. RCSD had Ms. Pinnix stay at home without pay

for the two days. Exhibit 4, p. 63; Exhibit 3, p. 88. After its investigation, RCSD concluded

that Ms. Pinnix had not meant or intended anything racially discriminatory or

inappropriate in any way. Exhibit 4, p. 63-64; 70-71.

Despite Ms. Pinnix’s immediate explanation of what she meant to say, T.L. claims

that he has been mentally distressed. Exhibit 2, pp. 77-78. There’s been no physical

manifestation of any of this alleged mental distress. Id., p. 78. He has seen no

professionals for assistance, is not on any medication, and has been diagnosed with

nothing because of the April 5th incident. Id., pp. 79-80. Since then, T.L. has graduated

from high school, gone to college, and worked at several part-time jobs. Id., pp. 120-21.

Until this incident, for the nearly 30 years Ms. Pinnix taught for RCSD, no one had

ever made any complaint or expressed any problem about Ms. Pinnix, her character, or

her teaching. Exhibit 4, pp. 78-80. Before this, she had never been accused of using any

racial or offensive words and had never been investigated by any employer for anything

4 “Hang out to dry” is a saying that means “abandon someone to danger.” The
American Heritage Idioms Dictionary (2002), https://www.dictionary.com. It is so
accepted and understood that numerous court decisions contain it. In Montana, the
courts apply a “hanging ‘out to dry’” test when counsel seeks to leave a party in the middle
of litigation. In re Marriage of Hardin, 184 P.3d 1012, 1016 (Mont. 2008). Courts
repeatedly quote the phrase without explaining its meaning. See, e.g., State v. Gerald, No.
12CA3519, 2014 Ohio App. LEXIS 3572, *53 (Ohio Ct. App. 2014), United States v.
Wilson, No. 06-50107, 2011 U.S. Dist. LEXIS 2537, at *22 (W.D. La. Jan. 11, 2011), and
State v. Bunting, 51 P.3d 37, 40 (Utah Ct. App. 2002).
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she allegedly said or did. Exhibit 3, pp. 46, 105. This is the only problem that T.L. ever

had with her. Exhibit 2, pp. 68-69; pp. 116-17.

From 2012 until this lawsuit, RCSD had not been subject to any claims, lawsuits,

or administrative proceedings that included claims of racial discrimination (or even had

a racial component) against a teacher. Exhibit 4, pp. 37-39.

ARGUMENT

Because T.L. can identify no ministerial duties violated by RCSD and because Ms.

Pinnix’s statement is a stray remark, there is no legal basis for this lawsuit. Summary

judgment should be granted.

Standard for Granting Summary Judgment

This court “shall grant summary judgment if [RCSD] shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). RCSD’s “burden is only to point out the absence of evidence

supporting” T.L.’s case. Stults v. Conoco, Inc., 76 F.3d 651, 656 (5th Cir. 1996) (quotation

omitted).

Here, there are no material fact disputes related to summary judgment. 5 The

question before this court is whether these facts, applied to the law, can sustain any of

T.L.’s causes of action. They cannot, and the lawsuit against RCSD should be dismissed.

T.L. cannot establish the elements of a § 1983 claim.

T.L. alleges racial discrimination under 42 USC § 1983, claiming he is entitled to

damages because Ms. Pinnix “deliberately and intentionally singled [him] out…based on

his appearance” and harassed him. Exhibit 1, ¶ 36. T.L. alleges that RCSD had “intentional

5 Again, RCSD is only adopting the Lindsays’ version of facts for purposes of summary

judgment.
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disregard for academic policies,” treated him “different because of the color of his skin,”

and subjected him “to a hostile and inappropriate environment restricting his ability to

learn and develop.” Id., ¶¶ 37-38.

Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation,


custom, or usage, of any State…subjects, or causes to be subjected, any
citizen of the United States…to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable to the
party injured in an action at law….

42 USC § 1983. To state a § 1983 claim against RCSD, T.L. must “(1) allege he has been

deprived of a right secured by the United States Constitution or the laws of the United

States; and (2) demonstrate that the alleged violation was committed by a person acting

under color of state law.” Gomiller v. Dees, No. 4:06cv33, 2007 U.S. Dist. LEXIS 23230,

at *13-14 (N.D. Miss. Mar. 28, 2007). T.L. claims he suffered racial discrimination,

depriving him of his right to equal protection under the 14th Amendment to the U.S.

Constitution, and that, as a teacher, Ms. Pinnix was acting under color of state law. Exhibit

1, ¶¶ 36, 38.

To succeed on his claim of racial discrimination under the Equal Protection clause,

T.L. must prove:

1) He is a member of a protected class;

2) Otherwise, he is similar to members of an unprotected class;

3) RCSD treated T.L. differently than the similarly-situated individuals; and

4) RCSD acted with a discriminatory intent when it treated T.L. differently.

Priester v. Lowndes County, 354 F.3d 414, 424 (5th Cir. 2004) (quotation omitted) and

Jackson v. Katy Indep. Sch. Dist., 951 F. Supp. 1293, 1302 (S.D. Tex. 1996). To state a

claim against a school district, T.L. must prove that RCSD “acted in accordance with an
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official governmental policy or firmly entrenched custom that deprived [him] of

constitutional rights.” Jackson, 951 F. Supp. at 1302.

While T.L. is a member of a protected class and otherwise similar to members of

an unprotected class, T.L. cannot prove that he was treated differently, he cannot prove

that RCSD acted with discriminatory intent, and he cannot prove that RCSD has any

governmental policy or custom that deprived him of his constitutional rights. His § 1983

claim fails and should be dismissed.

T.L. has no evidence of any discriminatory policy.

Before T.L. can have a successful § 1983 claim against RCSD, he must prove that

RCSD had an official policy 6 or “firmly entrenched custom 7” such that RCSD deprived

him of his rights. Id. There is no evidence of such a discriminatory policy. Without one,

there can be no liability against RCSD.

There is no evidence of a discriminatory intent.

To prove his § 1983 claim against RCSD, T.L. must show that RCSD acted with

discriminatory intent. The evidence is that Ms. Pinnix—the only person accused of any

discriminatory action—had no such intent.

6 An official policy must be “[a] policy statement, ordinance, regulation, or decision


that is officially adopted and promulgated by the district…or by an official to whom the
district delegated policy-making authority.” Jackson, 951 F. Supp. at 1302. “A persistent,
widespread practice of district officials or employees, which although not authorized by
officially adopted and promulgated policy, is so common and well settled as to constitute
a claim that fairly represents district policy” can also be an official policy. Id. T.L. cannot
identify any relevant policy.
7 A custom has been defined as “persistent and widespread practices” or “practices

that are permanent and well settled and deeply imbedded traditional ways of carrying out
policy.” Bennett v. City of Slidell, 728 F.2d 762 (5th Cir. 1984). T.L. cannot describe any
such custom.
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But even if there were a question about Ms. Pinnix’s intent, summary judgment is

still appropriate for RCSD. Liability may not be imposed on RCSD under a theory of

vicarious liability or respondeat superior. Doe v. Beaumont Indep. Sch. Dist., 8 F. Supp.

2d 596, 607 (E.D. Tex. 1998). “Instead, a plaintiff must show the existence of a policy or

custom attributable to the School District which was the ‘moving force’ behind the

deprivation of constitutional rights.” Id. A policy or pattern of conduct can establish the

requisite discriminatory intent. Jackson, 951 F. Supp. at 1298 (citing Village of Arlington

Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977)).

T.L.’s only evidence is Ms. Pinnix’s one-time remark. He makes no claims that he

was treated differently by RCSD either before or after her statement. He makes no claims

that Ms. Pinnix, a substitute teacher employed by Kelly Services, treated him differently

either before or after her statement. He has no evidence of any policy or custom. The only

evidence of a policy is RCSD’s policy to hire only people who will be fair to all the students.

Exhibit 4, p. 17. Likewise, the only evidence of custom is that RCSD annually trains its

teachers to focus on “fairness for all students and treating all students equally.” Id., p. 31.

T.L. has no evidence that RCSD took any discriminatory actions toward him or had

any discriminatory intent. He cannot meet the requirements of a § 1983 claim, and this

claim against RCSD should be dismissed.

Section 1983 claims cannot be based on a stray remark.

In addition to failing to meet the basic elements of his § 1983 claim, T.L.’s claim

fails because “the use of a racial epithet without harassment or other conduct depriving

the victim of his established rights does not constitute an equal protection violation.”

Priester, 354 F.3d at 424. See also Fennell v. Marion Indep. Sch. Dist., No. 12cv941, 2014

U.S. Dist. LEXIS 120033, at *15-16 (W.D. Tex. Aug. 28, 2014) and Gomiller, 2007 U.S.
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Dist. LEXIS 23230, at *13-14. Such comments are often referred to as “stray remarks;”

without more, they do not support a finding of discrimination and cannot defeat summary

judgment. See, e.g., Waggoner v. City of Garland, 987 F.2d 1160, 1166 (5th Cir. 1993) and

Gomiller, 2007 U.S. Dist. LEXIS 23230, at *16 (granting summary judgment because

there was no “evidence in addition to the racial epithet”). See also City of Oklahoma City

v. Tuttle, 471 U.S. 808, 823-24 (1985) (one isolated incident cannot establish a claim

under § 1983).

In Priester, the student was subjected “to numerous racial epithets” from a coach.

Priester, 354 F.3d at 417. Priester alleged that because of these epithets, other students

hit him; one even gorged his eye, resulting in permanent damage. Id. Priester claimed that

the coach heard the statements and witnessed the assaults, but he did nothing to stop

them or protect him. Id. Summary judgment dismissing Priester’s equal protection claim

under § 1983 was affirmed, because he only had evidence of the alleged racial epithets

and no evidence “from which a reasonable juror could infer racial animus by a state

official….” Id. at 424-25.

In Gomiller, a teacher told a fourth-grade student in the Carroll County School

District that “she ‘walked like a nigger, dressed like a nigger, and acted like a nigger’ in

front of a full class of fourth grade students.” Gomiller, 2007 U.S. Dist. LEXIS 23230, at

*2. Despite this language, summary judgment was granted because the plaintiffs were

unable to present “any evidence showing further racial animus towards” the student. As

the court explained, “There is no evidence of any actions, lack of action or any other

evidence except this one racial slur. Thus, the Court finds that the Plaintiffs have not

proven that [the student’s] constitutional rights were violated.” Id. at *15-16.

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T.L. testified that Ms. Pinnix said, “If he touches you, we’ll hang him.” Assuming

this is a racial slur, this is the only evidence that T.L. has. Like the plaintiffs in Priester

and Gomiller, T.L. has no evidence other than this alleged racial slur. Instead, the

evidence shows:

• Over her nearly 30-year career as a teacher for RCSD, there was no prior

history of any complaints (racial or otherwise) involving Ms. Pinnix. Exhibit

4, pp. 78-80.

• Other than this incident, Ms. Pinnix has never been accused of using any

racial or offensive words and has never been investigated by any employer

for anything she allegedly said or did. Exhibit 3, pp. 46, 105.

• Other than this one time, T.L. had no problems with Ms. Pinnix. Exhibit 2,

pp. 116-17. In fact, before April 5th, he thought she was a “sweet old lady.”

Id., p. 49, 117.

• None of T.L.’s school discipline was by Ms. Pinnix or caused by Ms. Pinnix

reporting something about him. Id., pp. 68-69; pp. 116-17.

• Other than the April 5th incident, T.L. never made a complaint about racial

discrimination at the school. Id., p. 119.

Without evidence in addition to the single alleged racial slur, this case is the same

as Gomiller. A similar ruling should be reached: T.L. cannot prove his § 1983 claim, and

summary judgment should be granted.

T.L.’s MTCA claims fails as a matter of law.

The Mississippi Tort Claims Act (“MTCA”) provides the exclusive remedy against

a governmental entity and its employees for acts or omissions that lead to a lawsuit. Miss.

Code Ann. § 11-46-7(1). A school district constitutes a “governmental entity” and a


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“political subdivision” of the state. Miss. Code Ann. §11-46-1; Harris v. McCray, 867 So.

2d 188, 191 (Miss. 2003). Other than his § 1983, T.L.’s remaining claims are torts. This

Court should examine them under the MTCA.

The MTCA waives immunity for certain tort claims; this waiver of immunity,

however, is subject to exemptions. Miss. Code Ann. § 11-46-9. Whether a governmental

entity is immune because of an exemption is a question of law, properly addressed by

summary judgment. City of Jackson v. Gardner, 108 So. 3d 927, 928 (Miss. 2013). The

exemptions to the MTCA’s waiver of immunity are “an entitlement not to stand trial

rather than a mere defense to liability and, therefore, should be resolved at the earliest

possible stage of litigation.” Mitchell v. City of Greenville, 846 So. 2d 1028, 1029 (Miss.

2003).

Section 11-46-9 explains that RCSD “shall not be liable for any claim…[b]ased upon

the exercise or performance or the failure to exercise or perform a discretionary function

or duty on the part of a governmental entity or employee thereof, whether or not the

discretion be abused….” Miss. Code Ann. § 11-46-9(1)(d). A duty “is discretionary when it

is not established by law and relies on the choice or judgment of the governmental entity

and/or its employee.” Harris v. Bd. of Trs. of the Clinton Pub. Sch. Dist., 126 So. 3d 100,

104 (Miss. Ct. App. 2013). In contrast, a function “is ministerial if it is imposed by law and

required to be performed at a specific time and place, removing a governmental

employee’s or entity’s choice or judgment.” Id.

To determine whether an activity is discretionary, courts use a two-part “public

policy function test.” Wilcher v. Lincoln Cty. Bd. of Supervisors, 243 So. 3d 177, 187 (Miss.

2018). The first step is to ask “whether the activity in question involved an element of

choice or judgment. If so, this Court also must decide whether that choice or judgment
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involved social, economic, or political-policy considerations.” Id. (citing Miss. Transp.

Comm’n v. Montgomery, 80 So. 3d 789, 795 (Miss. 2012)). Every decision RCSD made

related to Ms. Pinnix and the hiring of Kelly Services to provide substitute teachers

involved elements of choice or judgment and included social, economic, or policy

decisions. Therefore, RCSD is immune, and each of T.L.’s tort claims should be dismissed.

RCSD is immune because there is no ministerial duty to strictly supervise teachers.

T.L. accuses RCSD of violating the Tort Claims Act, claiming it “owed a ministerial

duty of strict supervision”—apparently of its teachers, whether employees or not. Exhibit

1, ¶ 15. T.L. points to nothing to support this claim of a ministerial duty. For that claim to

succeed, this Court would have to agree that RCSD—with no discretion—must monitor

each of its teachers, previewing everything they say, approving each word, sentence, and

statement. This is an impossible standard, unsupported by any case law or statute.

Instead, courts regularly hold that school districts are immune from claims of

students’ injuries because of the discretionary nature of the school district’s conduct. See,

e.g., Davis v. Jones Cty. Sch. Dist., 193 So. 3d 653, 656 (Miss. Ct. App. 2015) (oversight

of parking lot is discretionary); K. G. v. Hous. Sch. Dist., No. 1:09cv300, 2010 U.S. Dist.

LEXIS 104671, *1-2 (N.D. Miss. Sep. 29, 2010) (decision to hold fundraiser was

discretionary); Covington County School Dist. v. Magee, 29 So. 3d 1, 6 (Miss. 2010)

(conduct related to football practice was discretionary); Clein v. Rankin Cty. Sch. Dist.,

78 So. 3d 384, 389 (Miss. Ct. App. 2012) (decisions about class were discretionary); and

Strange v. Itawamba Cty. Sch. Dist., 9 So. 3d 1187, 1193 (Miss. Ct. App. 2009) (immune

from injuries incurred on school grounds during school hours).

In each of these cases, the courts determined that discretion existed in the

decisions made by the school district. Here, the decision whether to have Ms. Pinnix be a
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long-term substitute for Personal Finance is just such a discretionary decision. It was

driven by RCSD’s choice and judgment and involved economic and policy decisions, such

as the benefit of having a single substitute teacher for a course, having a teacher who had

experience at Northwest Rankin during another teacher’s extended absence, and other

similar considerations.

There is nothing that supports T.L.’s claim that RCSD has a ministerial duty to

strictly supervise its teachers. His MTCA claims should be dismissed.

RCSD is immune because there is no basis for a utility claim against RCSD.

In his negligence per se claim, T.L. alleges that RCSD owed him a duty under § 11-

27-43 of the Mississippi Code. Exhibit 1, ¶ 19. That statute applies to utility companies. It

provides no duties, ministerial or otherwise, that apply to RCSD or that RCSD owed to

T.L. There is no basis for a negligence per se claim.

RCSD’s hiring and supervision of Kelly Services was discretionary.

T.L. rounds out his MTCA claims against RCSD by alleging that RCSD violated

some undefined duty it owed to T.L. when it hired Kelly Services to provide substitute

teachers. Nothing supports this claim, and it should be dismissed.

Mississippi case law is clear: a school district is immune from liability for claims of

negligent hiring and supervision because “‘[t]he duty to hire and supervise employees is

necessarily and logically dependent upon judgment and discretion.’” A.B. v. Stone Cty.

Sch. Dist., 14 So. 3d 794, 799 (Miss. Ct. App. 2009) (quoting T.M. v. Noblitt, 650 So. 2d

1340, 1344 (Miss. 1995)). Thus, RCSD’s decisions related to hiring, supervising, training,

and retaining Kelly Services was a discretionary function, and RCSD is immune from

liability.

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T.L.’s tort claims against RCSD are based on RCSD’s discretionary functions (or

statutes that do not apply to schools), and each should be dismissed.

T.L. has no basis for his emotional distress claim.

T.L. makes a separate claim for negligent or intentional infliction of emotional

distress. Exhibit 1, ¶¶ 25-26. T.L. does not have evidence to support either claim, and both

should be dismissed.

There is no physical manifestation of the alleged distress.

To sustain a claim for negligent infliction of emotional distress, there must be some

physical manifestation of the distress. Magee v. Securitas Sec. Servs. USA, Inc., No.

3:15cv333, 2016 U.S. Dist. LEXIS 112256, at *26 (S.D. Miss. Aug. 23, 2016) (citing

Randolph v. Lambert, 926 So. 2d 941, 946 (Miss. Ct. App. 2006)).

The only evidence is this: T.L. has never seen a doctor, never sought treatment, and

never been diagnosed with anything because of Ms. Pinnix’s statement. Even if RCSD

could be held vicariously liable for emotional distress based on Ms. Pinnix’s statement,

the required proof for negligent infliction of emotional distress does not exist. T.L.’s claim

should be dismissed.

Racial slurs do not sustain a claim of intentional infliction of emotional distress.

A claim of intentional infliction of emotional distress requires T.L. show that

RCSD’s conduct was “wanton and willful and it would evoke outrage or revulsion.” Speed

v. Scott, 787 So. 2d 626, 630 (Miss. 2001) (quotations omitted). Successful intentional

infliction claims are rare, but they exist when the conduct is “so outrageous in character,

and so extreme in degree, as to go beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized community.” Id. (quotations

omitted). A textbook example of such a claim is a long-involved plot by a woman and her
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parents to hide her child from its father and arrange for the baby’s adoption while the

father was seeking custody. Smith v. Malouf, 722 So. 2d 490, 498 (Miss. 1998).

In claims of racial discrimination, even when faced with multiple abusive

comments, intentional infliction of emotional distress causes of action are routinely

dismissed on summary judgment. See, e.g., Magee, 2016 U.S. Dist. LEXIS 112256, at *27-

28 and Odum v. Beverly Enters. Miss., Civil Action No. 1:96cv382-D-D, 1998 U.S. Dist.

LEXIS 4475, at *24 (N.D. Miss. Feb. 19, 1998). Here, there is a single statement where the

undisputed evidence is that Ms. Pinnix’s intent was to finish the phrase “hang him out to

dry.” There is no evidence that Ms. Pinnix had a racist or otherwise outrageous intent

behind her stray remark. The facts do not support a claim for intentional infliction of

emotional distress, and it should be dismissed.

Moreover, T.L. has no evidence that Ms. Pinnix’s statement should qualify as

RCSD’s conduct. 8 As a result, T.L. has no evidence of any negative conduct by RCSD, let

alone wanton, willful, outrageous, and repulsive conduct.

RCSD took no discriminatory or otherwise negative conduct toward T.L., and Ms.

Pinnix’s statement was not intended to harm T.L. in any way. T.L.’s intentional infliction

of emotional distress claim should be dismissed.

CONCLUSION
The evidence does not support any of T.L.’s claims. Each should be dismissed, and

RCSD should be dismissed from this lawsuit.

8 Not only was Ms. Pinnix not RCSD’s employee, vicarious liability only “holds
employers liable in tort for the negligent actions of their employees, taken on behalf of the
employer while in the course and scope of their employment.” Thomas v. Cook, 170 So.
3d 1254, 1259 (Miss. Ct. App. 2015).
14
Case 3:17-cv-00808-TSL-RHW Document 68
67 Filed 12/11/18
12/10/18 Page 15 of 15

Dated: December 10th, 2018.


Respectfully submitted,
RANKIN COUNTY SCHOOL DISTRICT

By: /s/ Walker Gibson


Walker Gibson (MSB #100051)
wgibson@cctb.com
Its Attorney

OF COUNSEL:

COPELAND, COOK, TAYLOR & BUSH, P.A.


Post Office Box 6020
Ridgeland, Mississippi 39158
Telephone: 601-856-7200

CERTIFICATE OF SERVICE
I hereby certify that on the below date I electronically filed the foregoing with the

Clerk of the Court using the ECF system, which sent copies of this document to all counsel

of record.

Dated: December 10, 2018.

By: /s/ Walker Gibson

15
Case 3:17-cv-00808-TSL-RHW Document 66 Filed 12/10/18 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT


FOR THE SOUTHERN DISTRICT
NORTHERN DIVISION

TONY AND KAYLA LINDSEY


on behalf of their minor son, T.L. PLAINTIFFS

v. CAUSE NO.: 3:17-cv-808-TSL-RHW

RANKIN COUNTY SCHOOL DISTRICT,


“JANE” PINNIX in her official and
individual capacity, KELLY SERVICES, INC.,
and JOHN DOES 1-5 DEFENDANTS

____________________________________________________________
MOTION FOR SUMMARY JUDGMENT BY
RANKIN COUNTY SCHOOL DISTRICT
____________________________________________________________
Defendant Rankin County School District (“RCSD”) moves the Court for summary

judgment.

1. The Plaintiff lacks the evidence to prove any of his claims. Under Rule 56 of the

Federal Rules of Civil Procedure, RCSD is entitled to judgment as a matter of law

and dismissal is proper.

2. RCSD relies on and incorporates its Memorandum Brief filed in support of this

motion.

3. In support of this Motion and the accompanying Memorandum Brief, RCSD

submits the following Exhibits.

Exhibit 1 – Complaint

Exhibit 2 – Deposition of T.L.

Exhibit 3 – Deposition of Sherry Pinnix

Exhibit 4 – Deposition of RCSD

Dated: December 10th, 2018.


Case 3:17-cv-00808-TSL-RHW Document 66 Filed 12/10/18 Page 2 of 2

Respectfully submitted,
RANKIN COUNTY SCHOOL DISTRICT

By: /s/ Walker Gibson


Walker Gibson (MSB #100051)
wgibson@cctb.com
Its Attorney

OF COUNSEL:

COPELAND, COOK, TAYLOR & BUSH, P.A.


Post Office Box 6020
Ridgeland, Mississippi 39158
Telephone: 601-856-7200

CERTIFICATE OF SERVICE
I hereby certify that on the below date I electronically filed the foregoing with the

Clerk of the Court using the ECF system, which sent copies of this document to all counsel

of record.

Dated: December 10, 2018.

By: /s/ Walker Gibson

2
Case 3:17-cv-00808-TSL-RHW Document 3 Filed 10/12/17 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT


FOR THE SOUTHERN DISTRICT
NORTHERN DIVISION

TONY AND KAYLA LINDSEY


ON BEHALF OF THEIR MINOR SON,
T.L. PLAINTIFFS

V. CAUSE NO.: 3:17-cv-808-TSL-RHW

RANKIN COUNTY SCHOOL DISTRICT


and “JANE” PINNIX in her official
and individual capacity, KELLY SERVICES,
INC., and JOHN DOES 1-5 DEFENDANTS

AMENDED COMPLAINT
(Jury Trial Demanded)
______________________________________________________________________________

COMES NOW, Tony and Kayla Lindsey On Behalf of their minor son, T.L., and

files this, their Amended Complaint against Rankin County School District, “Jane”

Pinnix, and Kelly Services, Inc. (hereinafter “Defendant RCSD,” “Defendant Pinnix,”

“Defendant KS,” “Defendant Does,” or collectively “Defendants”), and allege the

following:

PARTIES

1. Plaintiffs Tony and Kayla Lindsey are the parent of T.L., a minor. Plaintiff are

adult resident citizens of Mississippi, residing at 7021 Highway 225, Brandon,

Mississippi 39047.

2. Defendant RCSD is a public school district in Rankin County, Mississippi with a

principle place of business at 1220 Apple Park Place, Brandon, Mississippi 39042.
Case 3:17-cv-00808-TSL-RHW Document 3 Filed 10/12/17 Page 2 of 10

It may be served with process of this court by and through its superintendent,

Sue Townsend, at 1220 Apple Park Place, Brandon, Mississippi 39042.

3. Defendant “Jane” Pinnix is a teacher at Rankin County School District, and may

be served with process at 1220 Apple Park Place, Brandon, Mississippi 39042.

4. Defendant KS is a foreign corporation, qualified to do business within the State

of Mississippi. It may be served with process upon its’ registered agent, C T

Corporation System, located at 645 Lakeland East Drive, Ste. 101, Flowood, MS

39232.

5. Defendants John Does 1-5 are unknown individuals or entities who are liable for

the tortious acts described in this Complaint. The John Doe Defendants also

include any of Defendant Rankin County School District’s employees, agents,

independent contractors, or representatives who are liable to Plaintiffs for the

tortious acts described in this Complaint.

JURISDICTION and VENUE

6. This action is being brought pursuant to 28 U.S.C. §1331, 28 U.S.C. §1343(a)(3)

and 42 U.S.C. §1983, and The Mississippi Tort Claims Act, Miss. Code Ann. §11-

46-9, et. al and includes any and all federal law claims plead herein for which

jurisdiction and venue are attached.

7. Venue is proper in the Southern District of Mississippi, pursuant to 28 U.S.C.

§1391 since a substantial part of the events and omissions giving rise to this claim

occurred in this judicial district.

FACTS
Case 3:17-cv-00808-TSL-RHW Document 3 Filed 10/12/17 Page 3 of 10

8. At all times relevant herein, Plaintiff T.L. was a senior student at Northwest

Rankin High School in the Rankin County School District, under the supervision

of a substitute teacher, “Jane” Pinnix, 11th grade Principal Keith Fennell, and 12th

grade Principal Keith Buchanan.

9. At all times relevant herein, Defendant Pinnix was employed by Defendant KS as

a substitute teacher for Defendant RCSD.

10. On or about April 7, 2017, Plaintiff T.L. was being harassed by a white classmate

in the presence of his substitute teacher, Ms. “Jane” Pinnix. T.L. instructed this

white student to “back off or he would lay him out.” After T.L.’s comment, Ms.

Pinnix got involved and told the white student to “let T.L. hit him so that they

could hang him.”

11. Subsequent to the incident, T.L.’s parents, Plaintiffs Tony and Kayla, were

contacted by 11th grade Principal, Mr. Keith Fennell, who confirmed the

comments made by Ms. Pinnix and informed the parents that the entire incident

was caught on video surveillance. Mr. Fennell further informed the parents that

Ms. Pinnix had been suspended for a mere 2 days, but she was allowed to return

to work thereafter.

12. At the time of the subject incident, Mr. Matt Buchanan was the 12th grade

Principal, but he was not present on the campus of Northwest Rankin High

School at the time of the subject incident. As a result, T.L. suffered emotional and

mental pain and suffering.


Case 3:17-cv-00808-TSL-RHW Document 3 Filed 10/12/17 Page 4 of 10

13. At all times mentioned above, Ms. “Jane” Pinnix, Mr. Matt Buchanan, and Mr.

Keith Fennell were employees of the Rankin County School District.

COUNT ONE
MISSISSIPPI TORT CLAIMS ACT VIOLATION

14. Plaintiffs incorporate the above numbered paragraphs as if fully set forth herein.

15. Defendants are liable to Plaintiffs for their acts and omissions under the MTCA.

They owed a ministerial duty of strict supervision to the minor child and their

actions do not fall under any of the immunity provisions of the MTCA.

16. As a direct and proximate result of their said acts or omissions, Plaintiffs suffer

and will continue to suffer injuries and emotional pain and suffering, for which

Defendants are liable.

COUNT TWO
NEGLIGENCE PER SE

17. Plaintiffs re-allege and incorporate each and every preceding paragraph as if

fully set forth herein.

18. As alleged herein, on April 7, 2017, Plaintiff T.L. was a student at Northwest

Rankin High School in a class under the supervision of teacher Ms. “Jane”

Pinnix. Plaintiff T.L. was harassed by a white classmate and Ms. “Jane” Pinnix

negligently failed to properly manage the supervision of her students and failed

to accurately report the incident to administration. At all times, Defendants were

responsible for the safety of their students, specifically Plaintiff T.L.

19. Pursuant to §11-27-43 of Mississippi Code Annotated, Defendants breached their

duty owed to Plaintiffs and proximately caused Plaintiffs’ injuries.


Case 3:17-cv-00808-TSL-RHW Document 3 Filed 10/12/17 Page 5 of 10

20. As a direct and proximate result of Defendants’ negligence, Plaintiffs sustained

the damages set forth herein and all damages that will be proved at trial hereon.

COUNT THREE
GENERAL NEGLIGENCE

21. Plaintiffs re-allege and incorporate each and every preceding paragraph as if

fully set forth herein.

22. Plaintiffs allege that the Defendants breached their duty of ordinary care and

proximately caused Plaintiffs’ injuries.

23. As a direct and proximate result of Defendants’ negligence, Plaintiffs sustained

the damages set forth herein and all damages that will be proved at trial hereon.

COUNT FOUR
INTENTIONAL / NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

24. Plaintiffs re-allege and incorporate each and every preceding paragraph as if

fully set forth herein.

25. Plaintiffs allege that Defendants intentionally, negligently and with reckless

disregard inflicted extreme emotional distress upon their minds, spirits, and

bodies. By condoning and/or ratifying the acts of the teachers involved,

Defendants have caused Plaintiffs to suffer from emotional problems and mental

anxiety.

26. As a direct and proximate result of Defendants’ negligence, grossly negligent,

reckless and/or intentional acts and/or omissions, Plaintiffs sustained the

damages set forth herein and all damages that will be proved at trial hereon.
Case 3:17-cv-00808-TSL-RHW Document 3 Filed 10/12/17 Page 6 of 10

COUNT FIVE
NEGLIGENT SUPERVISION, HIRING, TRAINING,
AND RETENTION OF THE EMPLOYMENT SERVICES
(Rankin County School District to Kelly Services)

27. Plaintiffs re-allege and incorporate each and every preceding paragraph as if

fully set forth herein.

28. Defendant RCSD acted in gross negligence and/or reckless disregard in failing to

monitor the actions of the students and teachers, as well as failing to monitor the

hiring, training, and retention process of its substitute teachers by employment

service, Defendant Kelly Services. All of Defendant RCSD’s substitute teachers

are employed by Defendant KS. Defendant RCSD further negligently, grossly

negligently, and/or in reckless disregard, failed to train and discipline the

aforementioned employees, Mr. Matt Buchanan, Mr. Keith Fennell, and Ms.

“Jane” Pinnix to properly protect and monitor the students, specifically Plaintiff

T.L. and other similarly situated individuals. Defendant negligently, grossly

negligently, and/or in reckless disregard failed to properly follow and/or apply

their own school policies and procedures and failed to supervise the actions of its

employees.

29. Defendant School District knowingly, recklessly, and negligently failed to adopt

and carry out adequate and reasonable policies necessary to instruct, supervise,

control, and discipline Defendant “Jane” Pinnix and John Doe Defendants 1-5.

Defendant School District did not properly discharge its duties to Plaintiffs by
Case 3:17-cv-00808-TSL-RHW Document 3 Filed 10/12/17 Page 7 of 10

hiring, retaining, and failing to properly train and supervise its employees and

agents “Jane” Pinnix and John Does 1-5.

30. As a direct and proximate result of the Defendants’ negligence, grossly negligent,

reckless and/or intentional act and/or omissions, Plaintiffs sustained the

damages set forth herein and all damages that will be proved at trial hereon.

COUNT SIX
NEGLIGENT SUPERVISION, HIRING, TRAINING,
AND RETENTION OF THE TEACHERS INVOLVED
(Kelly Services to “Jane” Pinnix)

31. Plaintiffs re-allege and incorporate each and every preceding paragraph as if

fully set forth herein.

32. Defendant KS acted in gross negligence and/or reckless disregard in failing to

monitor the actions of the substitute teachers. Defendant KS further negligently,

grossly negligently, and/or in reckless disregard, failed to train and discipline

the aforementioned employees, Ms. “Jane” Pinnix to properly protect and

monitor the students, specifically Plaintiff T.L. and other similarly situated

individuals.

33. Defendant School District knowingly, recklessly, and negligently failed to adopt

and carry out adequate and reasonable policies necessary to instruct, supervise,

control, and discipline Defendant “Jane” Pinnix. Defendant KS did not properly

discharge its duties to Plaintiffs by hiring, retaining, and failing to properly train

and supervise its employee and agent “Jane” Pinnix.


Case 3:17-cv-00808-TSL-RHW Document 3 Filed 10/12/17 Page 8 of 10

34. As a direct and proximate result of the Defendant KS’ negligence, grossly

negligent, reckless and/or intentional act and/or omissions, Plaintiffs sustained

the damages set forth herein and all damages that will be proved at trial hereon.

COUNT SEVEN
RACE DISCRIMINATION

35. Plaintiffs re-allege and incorporate each and every preceding paragraphs as if

fully set forth herein.

36. Based on rights under §1983 civil rights laws as well as under the 14th

Amendment to the United States Constitution, which guarantees due process

and equal protection under the law, Defendants’ employees deliberately and

intentionally singled out Plaintiff T.L. based on his appearance, depriving him of

the right as other students to be a student in Ms. “Jane” Pinnix’s class who is not

harassed.

37. Defendants’ intentional disregard for academic policies and negligence in

treating Plaintiff T.L. different because of the color of his skin, has caused him

and his parents continued discomfort and pain.

38. Defendants have breached their duty as an educational institution and as

academic instructors by subjecting Plaintiff T.L. to a hostile and inappropriate

environment restricting his ability to learn and develop. Said policies should

have no place within an academic setting.


Case 3:17-cv-00808-TSL-RHW Document 3 Filed 10/12/17 Page 9 of 10

39. As a direct and proximate result of Defendants’ unlawful and discriminatory

conduct toward Plaintiff T.L., Plaintiffs have suffered tremendous emotional

distress.

40. Defendants’ discriminatory practices, insults, contempt, and disdain have been

demeaning to Plaintiff T.L. and have caused him to suffer deep pain,

humiliation, anxiety, and emotional distress.

41. The unlawful actions of Defendants complained of above were intentional,

malicious, and taken in reckless disregard of the statutory rights of Plaintiffs.

DAMAGES

42. Plaintiffs re-allege and incorporate each and every preceding paragraph as if

fully set forth herein.

43. As a consequence of the foregoing misconduct of Defendants, Plaintiffs sustained

pain and suffering, great mental stress, depression, insomnia, shock and

humiliation.

44. As a consequence of the foregoing conduct of Defendants, Plaintiffs have

damages in an amount exceeding the jurisdictional requirements of the Court.

45. Pursuant to Mississippi Code Annotated §15-1-36 and 11-46-1 et seq., Defendants

were given prior notice of Plaintiffs’ intent to sue.

RELIEF

46. Plaintiffs request that the Court issue the following relief:
Case 3:17-cv-00808-TSL-RHW Document 3 Filed 10/12/17 Page 10 of 10

a. Award Plaintiffs compensatory and punitive damages for all the

mentioned causes of action in an amount to be determined by a jury of his

peers;

b. Award Plaintiffs attorneys’ fees, costs and expenses of litigation; and

c. Award such other relief to which Plaintiffs may be entitled to under law.

WHEREFORE, PREMISES CONSIDERED, Plaintiffs demand judgment against

Defendants in an amount exceeding the jurisdictional requirements of this Court, all

together with Court costs, including attorneys’ fees, plus pre-and post-judgment

interest, and for any other relief which this Court deems just and proper.

Respectfully submitted, this the 12th day of October, 2017.

TONY AND KAYLA LINDSEY,


Et al., PLAINTIFFS

By: __/s/ Carlos E. Moore_________


Carlos E. Moore, MSB# 100685

_ Michael S. Carr____________
Michael S. Carr, MSB# 102138
OF COUNSEL:

TUCKER|MOORE GROUP, LLP


306 Branscome Drive
P. O. Box 1487
Grenada, MS 38902-1487
662-227-9940 – phone
662-227-9941 – fax
Email: carlos@tuckermoorelaw.com

CARR LAW FIRM, PLLC


301 W Sunflower Rd. Suite D
Cleveland, MS 38732
Tel: (662) 441-1LAW
Email: mcarr@carrlawpllc.com