Taylor v. New Orleans Police Department et al

Filing 59

ORDER AND REASONS re 49 MOTION for Leave to File Amended Complaint 51 MOTION for Leave to File Amended Complaint, 50 MOTION for Reconsideration re 48 Order on Motion for Miscellaneous Relief, 53 Objections, 52 Objections filed by Robert Paul Taylor. ORDERED that the Motions for Leave to Amend the Complaint, Rec. Docs. 49 and 51 are GRANTED IN PART AND DENIED IN PART as set forth in document. The 50 MOTION for Reconsideration re 48 Order on Motion for Miscellane ous Relief is DENIED WITHOUT PREJUDICE. ORDER re: document plaintiff calls 52 Objections. To the extent that plaintiff intended this filing to be a motion to compel, it is DENIED WITHOUT PREJUDICE. ORDER re: similar document called 53 Objections. To the extent that filing is intended as a motion to compel, it is DENIED. Signed by Magistrate Judge Daniel E. Knowles, III on 8/18/15.(plh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ROBERT PAUL TAYLOR

CIVIL ACTION

VERSUS

NO. 14-1972-DEK

NEW ORLEANS POLICE DEPARTMENTSEVENTH DISTRICT TASK FORCE, ET AL.

ORDER AND REASONS
Plaintiff has filed several motions which remain pending. The Court hereby disposes of
those motions as follows:
I. Motions for Leave to Amend the Complaint, Rec. Docs. 49 and 51
In the minute entry dated May 18, 2015, the Court ordered that all amendments to pleadings
be filed on or before June 29, 2015. Rec. Doc. 42. In response, plaintiff has filed two motions for
leave to amend the complaint. Rec. Docs. 49 and 51. Those motions are GRANTED IN PART
AND DENIED IN PART as follows.
In the original complaint, plaintiff claimed that excessive force was used to effect his arrest,
naming Sergeant Michael A. Stalbert, Leslie Guzman, Patrice Swan, Detective T. Perez, and other
unidentified individuals as defendants.1 Plaintiff's motions to amend are rambling and largely
indecipherable. However, the Court has attempted, to the best of its ability, to glean the proposed
1

Plaintiff also sued the "New Orleans Police Department - Seventh District Task Force."
However, the claim against that defendant was dismissed because the Task Force is not a legal entity
capable of being sued. Rec. Docs. 28 and 36.

amendments from the motions, and hereby GRANTS leave in one respect. Specifically, plaintiff
appears to seek leave to amend his federal individual-capacity excessive force claims against
Stalbert, Guzman, Swan, and Perez to provide additional factual allegations in support of those
claims. The complaint is hereby deemed to be amended to include the additional factual allegations
set forth in motions.
However, in all other respects, the motions are DENIED. In ruling on a motion for leave
to amend, a court may consider, inter alia, the futility of the proposed amendments. Gregory v.
Mitchell, 634 F.2d 199, 203 (5th Cir. 1981). To the extent that plaintiff is seeking leave for the
following amendments, the amendments would be futile and therefore will not be allowed:
1.

Plaintiff seeks to add § 1983 claims against Stalbert and Thomas for "negligence" in
supervising their subordinates. He also seeks to add § 1983 claims against Guzman
and Swan for "negligence" in effecting the arrest. Those amendments will not be
allowed because claims of negligence are not cognizable under § 1983. See, e.g.,
Eason v. Thaler, 73 F.3d 1322, 1329 n.3 (5th Cir. 1996) ("[N]egligence is not a
theory for which liability may be imposed under section 1983."); see also Baker v.
McCollan, 443 U.S. 137, 146 (1979) ("Section 1983 imposes liability for violations
of rights protected by the Constitution, not for violations of duties of care arising out
of tort law."); Nesmith v. Taylor, 715 F.2d 194, 195 (5th Cir. 1983) ("It is
fundamental to our federal jurisprudence that state law tort claims are not actionable
under federal law; a plaintiff under section 1983 must show deprivation of a federal
right.").
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2.

Plaintiff appears to seek to add claims against Stalbert and a new defendant,
"Commander M. Harrison," for implementing unconstitutional policies concerning
the manner in which arrests are to be effected. However, "[a] plaintiff may not infer
a policy merely because harm resulted from some interaction with a governmental
entity." Colle v. Brazos County, Texas, 981 F.2d 237, 245 (5th Cir. 1993); see also
Wetzel v. Penzato, Civ. Action No. 09-7211, 2009 WL 5125465, at *3 (E.D. La.
Dec. 23, 2009). Rather, he must identify the policy or custom which allegedly
caused the deprivation of his constitutional rights. See, e.g., Murray v. Town of
Mansura, 76 Fed. App'x 547, 549 (5th Cir. 2003); Treece v. Louisiana, 74 Fed. App'x
315, 316 (5th Cir. 2003); Wetzel, 2009 WL 5125465, at *3. In the instant case,
plaintiff does not adequately identify a policy or custom to state a cognizable claim;
therefore, this amendment will not be permitted.2

3.

Plaintiff appears to be attempting to add federal individual-capacity claims against
Guzman and Swan for deliberate indifference to plaintiff's serious medical needs.

2

It is unclear whether plaintiff is additionally seeking to amend the complaint to add a claim
that "Commander M. Harrison" was present on the scene and personally participated in the use of
force against plaintiff. If plaintiff is indeed seeking to assert such a claim, the Court will grant him
leave to file one, and only one, additional motion for leave to amend the complaint to assert that
claim. Any such motion must comply with the all of the following requirements: (1) the motion
must be filed on or before September 1, 2015; (2) it must not exceed two pages; (3) it must allege
that Harrison was present on the scene; and (4) it must describe what actions Harrison personally
took that harmed plaintiff. If such a motion is filed, then, within fourteen days of the motion being
docketed by the Clerk of Court, defense counsel must file a response stating whether the amendment
is opposed. Plaintiff is hereby advised that if such a motion is granted and Harrison is added
as a defendant, the trial in this matter may be delayed if Harrison files a motion to continue
based on his late addition to this lawsuit.
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However, his factual allegation in support of those claims is as follows: "[A]fter
they assaulted me themselves and reinjured my left arm, they again used a tactic to
hurt me even more by lifting both handcuffs behind my back towards my neck to lift
me and place me in Unit 1784."3 That allegation does not involve medical care;
rather, if it is relevant to any type of claim, it would be an excessive force claim.
Therefore, the Court will not allow the complaint to be amended to add a medical
claim based on that allegation; however, the Court will consider the allegation as an
amendment to the factual allegations in support of the excessive force claims against
Guzman and Swan.
4.

Plaintiff appears to seek to add various § 1983 claims based on purported violations
of state statutes. However, "[t]o state a claim under 42 U.S.C. § 1983, a plaintiff
must first show a violation of the Constitution or of federal law ...." Atteberry v.
Nocona General Hospital, 430 F.3d 245, 252 (5th Cir. 2005) (emphasis added). "[A]
violation of a state statute alone is not cognizable under § 1983 because § 1983 is
only a remedy for violations of federal statutory and constitutional rights."
Woodward v. Andrus, 419 F.3d 348, 353 (5th Cir. 2005). Accordingly, those
amendments will not be allowed.

5.

Plaintiff also appears to be seeking to add a vague, conclusory conspiracy claim
against the defendants. That amendment will not be permitted because conclusory
allegations of conspiracy fail to state a § 1983 cause of action. Small v. Dallas

3

Rec. Doc. 49, p. 11.
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County, Texas, 170 Fed. App'x 943, 944 (5th Cir. 2006); Russell v. Millsap, 781
F.2d 381, 383 (5th Cir. 1985); Wilson v. Budney, 976 F.2d 957, 958 (5th Cir. 1992).
6.

Plaintiff apparently also seeks to assert a claim against the City of New Orleans.
However, municipalities "are not vicariously liable under § 1983 for their employees'
actions." Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011). Therefore,
"[p]laintiffs who seek to impose liability on local governments under § 1983 must
prove that 'action pursuant to official municipal policy' caused their injury." Id.
(quoting Monell v. Department of Social Services, 436 U.S. 658, 691 (1977)).
However, as noted above, a plaintiff may not infer that such a policy exists simply
because he was harmed; rather, he must identify the policy. Again, he has not done
so, and his proposed amendment will not be permitted.

7.

Plaintiff also apparently seeks to add the following individuals as defendants:
Jeffrey Walls; Andrew Harrelson; Jay Sanders; Christopher Jennings, III; and Nicole
Kelly. However, it is clear that "[p]laintiffs suing governmental officials in their
individual capacities ... must allege specific conduct giving rise to a constitutional
violation. This standard requires more than conclusional assertions: The plaintiff
must allege specific facts giving rise to the constitutional claims." Oliver v. Scott,
276 F.3d 736, 741 (5th Cir. 2002) (citation omitted). Additionally, "[p]ersonal
involvement is an essential element of a civil rights cause of action." Thompson v.
Steele, 709 F.2d 381, 382 (5th Cir. 1983). Here, plaintiff neither makes any factual
allegations against the proposed defendants nor alleges that they were in any way
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personally involved in the events giving rise to his claims. Therefore, no cognizable
claims have been stated against these individuals, and the proposed amendments will
not be allowed.
Accordingly, to summarize, the only claims currently pending before the Court and
which will be considered at trial are the individual-capacity excessive force claims asserted
against Stalbert, Guzman, Swan, and Perez pursuant to 42 U.S.C. § 1983.
II. Unspecified Motion, Rec. Doc. 50
Plaintiff has also filed a document entitled "Memorandum to Support Plaintiff's Ex Parte
Application for All Subpoena Duces Tecum and Subpoena Duces Tecum. And to Record Evidence
Supporting My Statement of Material Facts." Rec. Doc. 50. That thirty-one page document is
largely nonsensical and the Court cannot determine what request, if any, plaintiff is making.
Accordingly, to the extent that the filing was intended as some type of motion, it is DENIED
WITHOUT PREJUDICE.
III. Motions to Compel, Rec. Docs. 52 and 53
Plaintiff has also filed a document which he calls "objections" to answers defense counsel
submitted to plaintiff's interrogatories. Rec. Doc. 52. To the extent that plaintiff intended this filing
to be a motion to compel, it is DENIED WITHOUT PREJUDICE. Because plaintiff has not
provided the Court with a copy of his interrogatories, the Court in unable to evaluate whether
defense counsel's responses are insufficient.
Lastly, plaintiff has filed a similar document which he calls "objections" to answers defense
counsel submitted to plaintiff's requests for production. Rec. Doc. 53. To the extent that filing is
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intended as a motion to compel, it is DENIED. Once again, plaintiff has not provided the Court
with a copy of his underlying discovery requests. However, in his response, defense counsel
purports to set forth each request along with his response to that request. If defense counsel has set
forth the requests accurately, his responses are adequate. On the other hand, if plaintiff is
contending that defense counsel has failed to set forth the requests accurately, the Court is unable
evaluate that contention without a copy of the requests.
New Orleans, Louisiana, this eighteenth day of August, 2015.

____________________________________
DANIEL E. KNOWLES, III
UNITED STATES MAGISTRATE JUDGE

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