Simon v. City of New Orleans, et al

Filing 22

ORDER granting in part and denying in part 17 Motion to Dismiss for Failure to State a Claim/for Lack of Jurisdiction. The complaint is dismissed in its entirety as to defendants Mayor Mitchell Joseph Landrieu, the New Orleans Police Department, and Sgt. Sherman Mushatt. Signed by Judge Jay C. Zainey. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TERRY SIMON

CIVIL ACTION

VERSUS

NO: 14-1730

CITY OF NEW ORLEANS, ET AL.

SECTION: "A" (1)

ORDER AND REASONS
Before the Court is a Motion to Dismiss Pursuant to Rules
12(b)(1) and 12(b)(6)(Rec. Doc. 17) filed by defendants Jonathan
Burnette, Max Schuler, Mayor Mitchell Joseph Landrieu, the New
Orleans Police Department, and Sgt. Sherman Mushatt.1 Plaintiff
Terry Simon opposes the motion. The motion, scheduled for
submission on March 11, 2015, is before the Court on the briefs
without oral argument.
This action arises out of plaintiff Terry Simon's encounter
with members of the New Orleans Police Department on July 31, 2013.
According to the Complaint, Officers Burnette and Schuler were
executing a citation on a driver whose vehicle was blocking Simon's
driveway. When the officers ignored Simon's request to move the
vehicle the scene escalated and the officers placed Simon under
arrest. (Rec. Doc. 1 ¶ 22). Simon complains that he was placed in

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The City of New Orleans is not named in the motion as a
movant but the Court assumes that this was an oversight by counsel.
The motion contains arguments regarding Monell liability that are
clearly specific to the City.

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the back of the police car with no air for an extended period of
time and that he suffered anxiety as a result. (Rec. Doc. 1 ¶ 24).
The Complaint does not indicate one way or the other whether the
officers took Simon to the station for booking or simply released
him at the scene when they were through with the citation.
Plaintiff seeks one million dollars in damages. (Id. ¶ 26).
Defendants now move to dismiss the Complaint arguing that the
Court lacks subject matter jurisdiction because the allegations are
too vague to invoke federal law. Alternatively, Defendants argue
that the allegations are too vague to state a claim for relief.
The motion is denied as to the Rule 12(b)(1) subject matter
jurisdiction challenge. Plaintiff specifically invokes the Fourth
Amendment in his Complaint and the facts alleged undisputedly state
a claim for a Fourth Amendment violation for either false arrest
and/or excessive force. Federal law requires only "a short and
plain statement." Fed. R. Civ. Pro. 8(a). Whether the Complaint
states a claim for any of the other numerous constitutional
provisions enumerated in the allegations is of no moment. For
purposes of federal jurisdiction, the Fourth Amendment claim
provides a basis for original subject matter jurisdiction.
The motion is granted in part and denied in part as to the
Rule 12(b)(6) challenge. The motion is granted as to defendants
Mayor Landrieu and Sgt. Mushatt because the Complaint contains no
factual allegations whatsoever to suggest personal involvement on
their part. The motion is also granted as to any

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federal claims

against the City of New Orleans because the allegations fail to
support the inference that the arrest/force was the result of a
policy or custom of the City. The motion is granted as to the New
Orleans Police Department, an entity that Plaintiff does not
dispute is incapable of being sued.
The motion is denied in all respects as to defendants Burnette
and Schuler, the only two defendants whose specific conduct caused
the alleged violation of rights.

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The motion is denied as to the

City vis à vis any state law claims because respondeat superior may
apply.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion to Dismiss Pursuant to Rules
12(b)(1) and 12(b)(6)(Rec. Doc. 17) filed by defendants Jonathan
Burnette, Max Schuler, Mayor Mitchell Joseph Landrieu, the New
Orleans Police Department, and Sgt. Sherman Mushatt is

GRANTED IN

PART AND DENIED IN PART as explained above. The complaint is
dismissed in its entirety as to defendants Mayor Mitchell Joseph
Landrieu, the New Orleans Police Department, and Sgt. Sherman
Mushatt.
March 17, 2015
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE
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The Court assumes that Burnette and Schuler are sued in their
personal capacities only. An official capacity claim against these
defendants is not viable for the same reasons that Plaintiff fails
to state a claim under federal law against the City.

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