Mills v. Bogalusa City, et al

Filing 65

ORDER AND REASONS granting in part and denying in part 13 Motion to Dismiss and/or Motion for Summary Judgment. Plaintiff's Equal Protection claim is DISMISSED WITH PREJUDICE. Plaintiff may proceed under his remaining claims. In addition, within fourteen (14) days, plaintiff shall amend his complaint to include the allegations set forth in his opposition to the instant motion. Signed by Judge Helen G. Berrigan on 6/29/2015. (Reference: Both Cases)(kac)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CIVIL ACTION

LOGAN N. MILLS

NO. 13-5477 c/w 14-1837
PERTAINS TO BOTH CASES
SECTION: “C”

v.
CITY OF BOGALUSA, ET AL

ORDER AND REASONS

Before the Court is a Motion to Dismiss and/or for Summary Judgment by the
City of Bogalusa, Joe Culpepper, and Kendall Bullen (“defendants”) (Rec. Doc. 13).
Plaintiff, Logan N. Mills, opposes the motion. (Rec. Doc. 24). Having considered the
law, the facts, and the arguments of the parties, the Court DENIES the motion, for the
reasons discussed herein.
I.

Background
This action arises out of the arrest and jailing of Daniel Dendinger (“Dendinger”)

in connection with a lawsuit for excessive force brought by Logan N. Mills (“Plaintiff”),
currently also before this Court. 1 Per plaintiff’s complaint, on April 20, 2011, plaintiff
committed an armed robbery of a bank in Bogalusa, Louisiana. Rec. Doc. 1 at 4. His
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Dendinger is the plaintiff in an action consolidated with this one. Civ. A. 14-1837.
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criminal trial for armed robbery commenced on August 13, 2012 in Washington Parish.
Id.
On April 18, 2012, prior to the criminal trial’s commencement, plaintiff filed an
action under 42 U.S.C. §1983 in this Court, claiming that officers of the Bogalusa Police
Department had used excessive force in apprehending him following the armed robbery.
(“the excessive force suit”) Id. The excessive force suit named Bogalusa’s Chief of
Police, Joe Culpepper (“Culpepper”), as well as Captain Kendall Bullen (“Bullen”),
Lieutenant Patrick Lyons (“Lyons”), Officer Scott Seals (“Seals”) and former Officer
Chad Cassard (“Cassard”) as defendants.
Several months after the filing of the excessive force suit, Seals and Cassard had
not yet been served in that matter. Mills’ counsel learned that both men were no longer
employed with the Bogalusa Police Department, and that Cassard was now working in
the offshore oil industry. Id. at 5. Mills’ counsel determined that Mills’ criminal trial
would provide the best opportunity to serve Seals and Cassard, since both would be
testifying in that trial. After an unsuccessful attempt at service in the Washington Parish
Courthouse while the trial was ongoing, Mills’ counsel instructed Douglas Dendinger
(“Dendinger”) to attempt service at the conclusion of the trial. Id. at 6.
Plaintiff alleges that on the afternoon of August 20, 2012, after the jury in the
criminal trial returned a verdict and was excused, Dendinger delivered the summons to
Cassard, who was standing on the courthouse steps near Bullen and Assistant District
Attorney Leigh Anne Wall (“Wall”). Plaintiff claims that Bullen yelled at Dendinger and
threw the envelope containing the summons and complaint toward Dendinger. Shortly
thereafter, Mills’ counsel received a call from Pamela Jean Legendre, staff attorney for
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the judge in Mills’ criminal trial, who used profanity and stated that there had been an
assault on a police officer and intimidation of a witness. Id. at 6-7. After the phone call,
Dendinger was arrested and charged with obstruction of justice, intimidation of a witness,
and battery of a police officer. Id. Dendinger was taken to the Washington Parish jail,
where he allegedly was ridiculed by Wall, Bullen, and Culpepper. Id. at 8.
On August 19, 2013, plaintiff brought this action against the defendants under 42
U.S.C. §1983. Plaintiff claims that by selectively prosecuting Dendinger, defendants
deprived plaintiff of the ability to exercise his First Amendment right to bring an
excessive force suit and his Fourteenth Amendment right to equal protection. Id.

II.

Standard of Review
A motion to dismiss under Rule 12(b)(6) may be granted when a complaint fails

to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable interference
that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). The well-pleaded factual allegations of the complaint, taken as true, must
raise the plaintiff's right to recover above the speculative level. Twombly, 550 U.S. at
555-56. Facts from which the court could infer the mere possibility of liability will not
suffice. Ashcroft, 556 U.S. at 678 (quoting Fed. R. Civ. P. 8(a)(2)). However, “a wellpleaded complaint may proceed even if it strikes a savvy judge that actual proof of these
facts is improbable, and that a recovery is very remote and unlikely.” Twombly, 550 U.S.
at 556.
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On a motion to dismiss, the court must take all well-pleaded factual allegations of
the complaint as true and draw all reasonable inferences in favor of the plaintiff. In re
Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007). Nevertheless,
"conclusory allegations and unwarranted deductions of fact are not admitted as true,
especially when such conclusions are contradicted by facts disclosed by document
appended to the complaint." Associated Builders, Inc. v. Alabama Power Company, 505
F.2d 97, 100 (5th Cir. 1974).

III.

Law and Analysis
Defendants argue that the action should be dismissed because plaintiff has failed

to state a cause of action. Rec. Doc. 13-1 at 7. Defendants also assert that plaintiff cannot
show that his First and Fourteenth Amendment rights have been violated. Id. at 9. In the
alternative, defendants argue that Culpepper and Bullen are entitled to qualified immunity
from suit. Id. at 10. Finally, defendants argue that the City of Bogalusa should be
dismissed because plaintiff has failed to state a cause of action against it. Id. at 12. The
Court will address each argument below.
a. Failure to State a Cause of Action and Failure to Prove Harm
Defendants argue that plaintiff has failed to state a cause of action under Fed. R.
Civ. P. 12(b)(6) and that plaintiff has not articulated what harm he suffered by the
defendants. Rec. Doc. 13 at 6, 9. Because both arguments concern whether plaintiff has
stated a cause of action to survive a motion to dismiss, the Court will discuss them
together.
Defendants state that the complaint must fail because it “does nothing more than
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state conclusory allegations” and “does not specifically articulate or set forth a set of facts

that alleges which of the Plaintiff’s constitutional rights have been violated by what
actions.” Rec. Doc. 13-1 at 9. The Court disagrees. Plaintiff has alleged that Culpepper
and Bullen harassed plaintiff’s process server. Plaintiff has also alleged in his opposition
to the instant motion that Bullen and Culpepper gave false voluntary statements in
connection with the process server’s arrest. Rec. Doc. 24 at 4-5. Although the allegations
as to the false voluntary statements should have been asserted in the complaint, the Court
opts to allow plaintiff an opportunity amend his complaint within fourteen (14) days.
Defendants also assert that plaintiff has not stated a violation of his First and
Fourteenth Amendment rights. The Court agrees only in part. The Court finds that
plaintiff has not stated a claim under the Equal Protection Clause of the Fourteenth
Amendment against Bullen, Culpepper, and the City of Bogalusa. To state a claim under
the Equal Protection Clause, plaintiff must demonstrate that he has been treated
differently due to his membership in a protected class and that the unequal treatment
stemmed from discriminatory intent. Hampton Co. Nat. Sur., LLC v. Tunica County,
Miss., 543 F.3d 221, 228 (5th Cir. 2008). Mills has not alleged that he belongs to a
protected class or that he experienced unequal treatment as a result of membership in a
protected class. “Unlike systemically discriminatory laws, isolated events that adversely
affect individuals are not presumed to be a violation of the equal protection clause.”
Gamza v. Aguirre, 619 F.2d 449, 453 (5th Cir. 1980). Accordingly, Mills’ Equal
Protection claim against Bullen, Culpepper, and the City of Bogalusa is DISMISSED
WITH PREJUDICE.
Plaintiff also alleges that he has been deprived of his First Amendment right to
bring an excessive force suit. The First Amendment claim is alleged under the heading of
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his Equal Protection claim, leaving the Court uncertain as to whether plaintiff intended to
pursue his First Amendment claim and Equal Protection claim separately or under a
single theory. Nevertheless, taking the “liberal notice pleading of Rule 8(a)” as “the
starting point”, and because plaintiff’s brief in opposition to the motion clarifies that he is
bringing a First Amendment retaliation claim (Rec. Doc. 24 at 9) the Court will treat the
First Amendment claim separately from plaintiff’s Equal Protection claim. Swierkiewicz
v. Sorema, 534 U.S. 506, 514 (2002).
To state a claim of First Amendment retaliation, plaintiff must show: 1) he was
engaged in constitutionally protected activity, 2) the defendants’ actions caused him to
suffer an injury that would chill a person of ordinary firmness from continuing to engage
in that activity, and 3) the defendants’ adverse actions were substantially motivated
against the plaintiffs’ exercise of constitutionally protected conduct. Keenan v. Tejeda,
290 F.3d 252, 258 (5th Cir. 2002). It is well-established that access to the courts is
protected by the First Amendment. “[T]he right of access to the courts is. . . but one
aspect of the right of petition.” BE & K Const. Co. v. N.L.R.B., 536 U.S. 516, 525 (2002)
(quoting California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 511
(1972)). Thus, the Court finds that plaintiff was engaged in constitutionally protected
activity. Turning to the second prong, the Fifth Circuit and other circuit courts have found
it was met when plaintiffs suffered “various concrete intimidating tactics [that] would
have deterred ordinary persons from criticizing government officials.” Keenan v. Tejeda,
290 F.3d 252, 259 (5th Cir. 2002) (citing North Miss. Comm., Inc. v. Jones, 951 F.2d 652
(5th Cir. 1992); Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998); Nestor Colon Medina &
Sucesores, Inc. v. Custodio, 964 F.2d 32 (1st Cir. 1992)). In Keenan, the Fifth Circuit
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held that several incidents with an “undercurrent of violence,” which included being
stopped by constables and other officers whose guns were drawn and being detained an
ordinate period of time, only to be issued a minor traffic citation that was later dismissed,
was sufficiently chilling to satisfy the second prong. Id. at 259. The Ninth Circuit has
held that a special prosecutor’s issuance of invalid subpoenas to a newspaper met the
second prong. Lacey v. Maricopa County, 693 F.3d 896, 916-17 (9th Cir. 2012).
In this case, the complaint alleges that both Bullen and Culpepper are
policymaking officials of the City of Bogalusa and that Culpepper further possesses final
decisionmaking authority over the policies and practices of the Bogalusa Police
Department, including those regarding the honoring of service of process. Rec. Doc. 1 at
2. In the complaint, plaintiff alleges that Bullen “yelled at the process server and threw
the envelope (containing summons and complaint) at the process server,” and that
Culpepper and Bullen taunted the process server, Dendinger, at the Washington Parish
Jail after he was arrested. Id. at 7. Plaintiff alleges that Culpepper whistled, winked and
laughed at Dendinger. Id.
In his opposition to the instant motion, plaintiff further asserts that both Bullen
and Culpepper provided false information in voluntary statements given to the
Washington Parish Sheriff’s Office. Rec. Doc. 24 at 5. Bullen’s voluntary statement reads
that he saw Dendinger “hit” Cassard in the chest area with a packet of papers. Rec. Doc.
24 at 9. In his deposition, Bullen claimed that he thought the envelope contained a bomb
and so threw it back at Dendinger. Rec. Doc. 13-6 at 5. Dendinger asserts that these
statements are false. In Culpepper’s statement, which is contradicted by his later
deposition testimony, Culpepper claims to have observed a white male “slap” Cassard in
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the chest with an envelope as Culpepper was walking down the steps of the courthouse.
Rec. Doc. 24-11. Plaintiff states that “a short period of time after Culpepper and Bullen
gave their Voluntary Statements, Dendinger was placed under arrest.” Rec. Doc. 24 at 6.
The Court finds that plaintiff’s allegations that Culpepper and Bullen gave false
statements that caused Dendinger to be arrested and held in jail for several hours and
taunted by various law enforcement officials to be sufficiently chilling. If true, the
improper arrest, jailing, and harassment of plaintiff’s relative and process server is the
type of improper law enforcement action that circuit courts have found sufficient to meet
the second element of a retaliation claim. Finally, plaintiff has alleged that Bullen and
Culpepper’s actions were aimed at preventing the exercise of Mill’s right to free speech.
Rec. Doc. 1 at 8. Thus, the Court finds that plaintiff has sufficiently alleged a violation of
his First Amendment rights.
b. Qualified Immunity
Defendants also assert that they are entitled to qualified immunity. Rec. Doc. 131 at 10. The qualified immunity defense shields “a government official from civil liability
for damages based upon the performance of discretionary functions if the official’s acts
were objectively reasonable in light of then clearly established law.” Atteberry v. Nocona
General Hosp., 430 F.3d 245, 253 (5th Cir. 2005). Once a defendant invokes the defense,
the burden shifts to the plaintiff to show its inapplicability. Id. at 253. Plaintiff can meet
this burden by showing that 1) the defendants committed a constitutional violation under
current law, and 2) that the defendant’s actions were objectively unreasonable in light of
clearly established law at the time of the actions. Id.

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Plaintiff argues that the First Amendment’s right to petition and a citizen’s right
to access the courts were well-established at the time that Dendinger was arrested. Rec.
Doc. 24 at 10. As discussed above, the Court agrees that this right was well-established
by case law of the Fifth Circuit and the United States Supreme Court.
Plaintiff next avers that the Fifth Circuit has held that “government retaliation
against a private citizen for the exercise of First Amendment rights cannot be objectively
reasonable.” Rec. Doc. 24 at 10 (quoting Keenan, 290 F.3d at 258). In Keenan, the Fifth
Circuit affirmed that retaliation for the exercise of First Amendment rights is not
objectively reasonable, but qualified its holding for situations in which “law enforcement
officials might have a motive to retaliate but there was also a ground to charge criminal
conduct against a citizen they disliked.” 290 F.3d at 261. However, here Culpepper and
Bibbins were not the officers who arrested Dendinger. Rather, they allegedly provided
false statements that led to Dendinger’s arrest. The Court finds that plaintiff has alleged
unreasonable conduct in light of clearly established law. The Supreme Court has held that
the use of false evidence to obtain a conviction is unlawful. Napue v. People of State of
Ill., 360 U.S. 264, 269-70 (1959). This principle has been upheld in this jurisdiction.
Castellano v. Fragozo, 352 F.3d 939, 950 (5th Cir. 2003); Young v. Biggers, 938 F.2d
565 (5th Cir. 1991); Burrell v. Adkins, No. CIV.A. CV01-2679-M, 2007 WL 4699166, at
*10 (W.D. La. Oct. 22, 2007) report and recommendation adopted as modified, No.
CIV.A. 3:01CV2679, 2008 WL 130789 (W.D. La. Jan. 10, 2008) (“Officers are not
entitled to qualified immunity if they knowingly presented false information in the
affidavit for an arrest warrant.”). Thus, taking plaintiff’s allegations as true, the Court
denies qualified immunity to defendants Bullen and Culpepper.
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c.

City of Bogalusa
Finally, defendants assert that plaintiff has not alleged any causes of action

against the City of Bogalusa, and that the City must be dismissed. Rec. Doc. 13-1 at 12.
However, the Court finds that plaintiff’s causes of action against Culpepper in his official
capacity are to be interpreted as causes of action against the City of Bogalusa. The
Supreme Court has stated that an official capacity suit represents “only another way of
pleading an action against an entity of which an officer is an agent.” Kentucky v. Graham,
473 U.S. 159, 165-66 (1985). “As long as the government entity receives notice and an
opportunity to respond, an official-capacity suit is, in all respects other than name, to be
treated as a suit against the entity.” Id. Because plaintiffs have alleged causes of action
against Culpepper in his official capacity, the Court declines to dismiss the City of
Bogalusa from the suit.
Accordingly, IT IS ORDERED that defendants’ motion is GRANTED IN PART
and DENIED IN PART. Plaintiff’s Equal Protection claim is DISMISSED WITH
PREJUDICE. Plaintiff may proceed under his remaining claims. In addition, within
fourteen (14) days, plaintiff shall amend his complaint to include the allegations set forth
in his opposition to the instant motion.
New Orleans, Louisiana on this 29th day of June, 2015

________________________________________
UNITED STATES DISTRICT JUDGE
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