
    Willie McGREGORY, Sr. and Lucy McGregory, Plaintiffs v. The CITY OF JACKSON, MISSISSIPPI, et al., Defendants.
    Civil Action No. 3:06CV561TSL-JCS.
    United States District Court, S.D. Mississippi, Jackson Division.
    Aug. 16, 2007.
    
      John F. Hawkins, Wayne Eric Stracener, Hawkins, Stracener & Gibson, PLLC, Jackson, MS, William Briggs Hopson, III, Teller, Chaney, Hassel & Hopson, Vicksburg, MS, for Plaintiffs.
    Pieter Teeuwissen, Pieter Teeuwissen, PLLC, Elizabeth Claire Barker, City of Jackson, Jackson, MS, for Defendants.
   MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

This cause is before the court on the motion of defendants City of Jackson, Mayor Frank Melton, Chief of Police Sher-lene Anderson, Jackson City Council, and City of Jackson Police Officers Willie Allen, Lee Robinson, Walton McJordan and Charles Banks to dismiss for immunity pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiffs Willie McGregory, Sr. and Lucy McGregory have responded in opposition to the motion and the court, having considered the memoran-da of authorities submitted by the parties, concludes that the motion should be denied.

Plaintiffs Willie McGregory, Sr. and his wife, Lucy McGregory, filed this action for damages against the City of Jackson, May- or Frank Melton in his official capacity, and four City of Jackson police officers, apparently in their individual and official capacities, pursuant to § 1983 and state law, asserting claims of excessive force, false arrest and false imprisonment, and various other state tort claims. The facts giving rise to this lawsuit, as set forth in the complaint, are as follows.

Plaintiff Willie McGregory runs a mechanic business in an automotive shop on West Capitol Street in the City of Jackson. He was working in his shop on May 18, 2005 when his son, Willie McGregory, Jr., drove into the establishment, followed by a number of police cars driven by City of Jackson police officers. McGregory, Jr. asked for keys to another vehicle, but plaintiff refused, and implored his son to surrender to the police. According to the complaint, the officers observed the senior McGregory’s efforts to get his son to give up. When gunshots were then fired, plaintiff McGregory lay down inside the building to protect himself. After the shooting, McGregory, Jr. walked out of the building and gave himself up to the police, and McGregory, Sr. walked out of the building with his hands up.

Plaintiffs allege that although McGrego-ry, Sr. “never took any acts of aggression toward any police officer and had not committed any crime,” but rather had done what he could to get his son to surrender, and had done so in a way that was observable to the officers, he was nevertheless ordered by the police officers to lie down on the ground, and an officer handcuffed his hands tightly behind his back. He was asked to stand, but when he responded that the handcuffs were too tight and were causing him great pain, the officers told him to roll over and stand up. McGrego-ry, Sr. alleges he was physically unable to do so, and that one of the officers held a gun to his head and told him he would “blow his f_brains out if he didn’t roll over.” McGregory, Sr., though, was not able to roll over, and the officer began kicking him in the ribs, resulting in the breaking of his ribs in several places. He was then pulled up off the ground, placed in a patrol car and taken to the police station, where he was questioned and released.

The individual defendants seek dismissal of plaintiffs federal claims on the basis of qualified immunity, arguing that since they had probable cause to “detain” McGregory, Sr., or at least could reasonably have believed they had probable cause to detain him, they are entitled to qualified immunity. In support of their motion, defendants direct the court to the written statements given by the involved officers during the City’s investigation into the shooting incident. In other words, defendants’ argument appears based on their own version of the facts. However, since the case is before the court on what defendants themselves purport to recognize as a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court is bound to accept the facts as they are alleged in plaintiffs complaint. See Lowrey v. Texas A & M Univ. Sys., 117 F.3d 242, 246-247 (5th Cir.1997) (on Rule 12(b)(6) motion, “complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the complaint must be taken as true”). The question, therefore, is not whether defendants would have immunity if the facts were as claimed by them, but rather whether they have immunity based on the facts as alleged by plaintiff in his complaint. According to the complaint, the officers had no reason to believe (or even suspect) that McGregory, Sr. was involved in the shootout with police, but rather, they knew or should have known that he was trying to assist police by encouraging his son to surrender to police. Further, defendants do not even acknowledge the allegations of excessive force, which allegations are manifestly sufficient to overcome defendants’ qualified immunity-

Defendants seek dismissal of the state law claims under certain exemptions to the waiver of immunity under the Mississippi Tort Claims Act (MTCA), namely, the police protection and discretionary function exemptions under Mississippi Code Annotated § ll-46-9(l)(c) and (d). While the MTCA represents a waiver of immunity for certain tort claims, Mississippi Code Annotated § 11 — 46—9(l)(c) and (d) provide exceptions to the MTCA “waiver of immunity,” stating:

(1) a governmental entity and its employees acting in the course and scope of employment or duties shall not be liable for any claim:
(c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities in relation to police or fire protection unless the employee acted in reckless disregard of the safety and well being of any person not engaged in criminal activity at the time of injury;
(d) Based on 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.

Defendants were engaged in activities in relation to police protection at the time of the incident. However, McGregory, Sr. was not engaged in criminal activity at the time of his arrest, and the question, therefore, regarding the potential applicability of § ll-46-9(l)(c) is whether the officers acted in reckless disregard of McGregory, Sr.’s safety or well being. Accepting McGregory, Sr.’s allegations as true, it certainly cannot be said that the officers’ actions, as identified in McGregory’s allegations of excessive force, fall within the exemption. Likewise, while a closer question may be presented with respect to McGregory’s claim for wrongful arrest, the court cannot conclude as a matter of law that the exemption applies, given that the court must accept McGregory, Sr.’s allegations as true.

Defendants also invoke the “discretionary function” exemption. However, if, as plaintiffs allege, the officers had no arguable basis for concluding they had probable cause to arrest McGregory, Sr., they it would seem they had no discretion to arrest him; and in no event did the officers have discretion to use excessive force against him. Accordingly, the motion to dismiss the individual defendants will be denied.

The City of Jackson argues that plaintiffs § 1983 claim against it must be dismissed because plaintiff has not alleged that the alleged constitutional deprivations resulted from an official policy, custom or practice of the City, and no such policy, practice or custom is alleged expressly or by implication. On the contrary, plaintiff does expressly allege that the deprivations resulted from an official City policy. It may be that plaintiff is ultimately unable to substantiate this charge, but that is a matter that is more appropriately explored via summary judgment or trial following time for discovery.

Based on the foregoing, it is ordered that defendants’ motion to dismiss is denied. 
      
      . Mrs. McGregory has asserted a derivative claim for loss of consortium. The court herein focuses on Mr. McGregory's claims, on which the viability of Mrs. McGregory’s claim depends.
     
      
      . Defendants argue that plaintiff "fails to set forth facts stating that [McGregory, Sr.] was actually arrested,” and they go on to suggest, disingenuously, that he was not arrested, but rather was merely detained for questioning. The facts alleged by plaintiffs are fully supportive of his claim that he was arrested, not merely detained.
     
      
      . Defendants have not purported to move for summary judgment and instead explicitly declare that "[a] Rule 12(b)(6) motion is the proper vehicle to test the legal sufficiency of the claims stated in the Complaint.”
     