Dunbar v. New Orleans Police Department et al

Filing 26

ORDER denying 24 Motion to Dismiss for Lack of Jurisdiction; denying 24 Motion to Dismiss for Failure to State a Claim. Signed by Judge Mary Ann Vial Lemmon on 6/9/14. (cbn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TAMOND DUNBAR

CIVIL ACTION

VERSUS

NO: 13-6451

NEW ORLEANS POLICE
DEPARTMENT, ET AL.

SECTION: "S" (5)

ORDER AND REASONS
IT IS HEREBY ORDERED that Defendants' Motion to Dismiss (Doc. #24) is DENIED.
BACKGROUND
Plaintiff, Tamond Dunbar, a Louisiana state inmate, filed this action on October 31, 2013,
against the New Orleans Police Department, and officers Roy Shackelford, Jon Burnette, Max
Schuler, Ron Zoller, Steve Roshto and Eugene Cummings, alleging claims under 42 U.S.C. § 1983
for violations of his Fourth Amendment right to be free from excessive force. Specifically, Dunbar
alleges that on February 22, 2013, the officers approached him and his wife claiming that they fit
the description of armed robbery suspects. Dunbar claims that he was detained, "beaten and tazed
in the face twice by the officers." He also claims that the victims of the robbery stated that he was
not the perpetrator, but that he was arrested for distribution of marijuana. Dunbar seeks damages
for pain and suffering, hospital bills, false imprisonment, and emotional distress.
On April 9, 2014, Burnette, Cummings, Roshto, Schuler and Shackelford filed a motion to
dismiss Dunbar's complaint arguing that he did not state a claim for a constitutional violation, thus
the court lacks subject matter jurisdiction.1 The court's record indicates that the motion was mailed
to Dunbar at his current address. Dunbar has not filed an opposition to the motion.

1

This court dismissed Dunbar's claims against the NOPD because it is an entity that does
not have the capacity to be sued (Docs. #14, 23).

ANALYSIS
A.

Pro Se
Because plaintiff is proceeding pro se, the court must construe his pleadings liberally. Grant

v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995). However, “[t]he right of self-representation does not
exempt a party from compliance with relevant rules of procedural and substantive law. Birl v.
Estelle, 660 F.2d 592, 593 (5th Cir. 1981).
B.

Rule 12(b) of the Federal Rules of Civil Procedure
1. Rule 12(b)(1)
"Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party to

challenge the subject matter jurisdiction of the district court to hear a case.” Ramming v. United
States, 281 F.3d 158, 161 (5th Cir.2001). “Lack of subject matter jurisdiction may be found in any
one of three instances: (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.” Id. In a 12(b)(1) motion, the party asserting jurisdiction bears the
burden of proof that jurisdiction does in fact exists. Id.
2. Rule 12(b)(6)
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a motion to dismiss a
complaint for failure to state a claim upon which relief can be granted. To survive a Rule 12(b)(6)
motion to dismiss, enough facts to state a claim for relief that is plausible on its face must be
pleaded. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl.
v. Twombly, 127 S.Ct. 1955, 1964-65 & 1973 n. 14 (2007)). A claim is plausible on its face when
2

the plaintiff pleads facts from which the court can “draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). “Factual
allegations must be enough to raise a right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl., 127 S.Ct. at
1965. The court “must accept all well-pleaded facts as true and view them in the light most
favorable to the non-moving party.” In re S. Scrap Material Co., LLC, 541 F.3d 584, 587 (5th Cir.
2008).
C.

Rule 8(a)(2) of the Federal Rules of Civil Procedure
Rule 8(a)(2) of the Federal Rules of Civil Procedure states that pleadings must contain a

short and plain statement of the claim showing that the pleader is entitled to relief. To comply with
Rule 8(a)(2) a plaintiff does not need to plead specific facts, but only “‘give the defendant fair notice
of what the. . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 127 S.Ct.
1955 (2007) (quoting Conley v. Gibson, 78 S.Ct. 99, 103 (1957)). Further, if a complaint alleges
facts upon which relief can be granted, the form is not important, even if it does not correctly
categorize the legal theory giving rise to the claim. Peavy v. WFAA-TV, Inc., 221 F.3d 158, 167
(5th Cir. 2000) (citing Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 604 (5th Cir. 1981)).
In this case, Dunbar sufficiently pleaded enough to invoke this court's federal question
jurisdiction under 28 U.S.C. § 1331 by stating a § 1983 claim for violations of his Fourth
Amendment right to be free from excessive force. Dunbar stated that the police beat him and tazed
him in the face during an arrest. This is enough to put the defendants on notice that Dunbar is
stating a claim for excessive force. Dunbar is proceeding pro se, and his pleadings his pleadings are
construed liberally. Therefore, defendant's motion to dismiss is DENIED.

3

CONCLUSION
IT IS HEREBY ORDERED that Defendants' Motion to Dismiss (Doc. #24) is DENIED.

9th
New Orleans, Louisiana, this _____ day of June, 2014.

____________________________________
MARY ANN VIAL LEMMON
UNITED STATES DISTRICT JUDGE

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