Boquet v. Belanger et al

Filing 24

ORDER AND REASONS: ORDERED that the 8 motion to dismiss filed by defendant, Craig LeBouef, is GRANTED and that all of plaintiff's claims against Craig LeBouef are DISMISSED WITH PREJUDICE. FURTHER ORDERED that the 8 motion to dismiss fil ed by defendant, Francis Armand Kouame, is GRANTED with respect to plaintiff's claims for intentional and negligent infliction of emotional distress, which claims are DISMISSED WITH PREJUDICE. Kouame's motion is DENIED in all other respects. Signed by Judge Lance M Africk on 4/14/2015.(blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JUSTIN J. BOQUET

CIVIL ACTION

VERSUS

NO. 14-2228

DANIEL BELANGER, ET AL.

SECTION I
ORDER AND REASONS

The Court has pending before it motions to dismiss pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure filed by defendants, Craig LeBouef (“LeBouef”)1 and Francis Armand
Kouame (“Kouame”).2 Plaintiff, Justin J. Boquet (“Boquet”), has responded3 and the motions are
now ripe for decision.
BACKGROUND
According to the first amended complaint,4 on November 29, 2013, plaintiff went to a
Walmart Supercenter in Houma, Louisiana.5 Plaintiff “was carrying a holstered Taurus PT609 semi-

1

R. Doc. No. 8.
R. Doc. No. 10.
3
R. Doc. Nos. 9, 12.
4
Plaintiff filed a complaint on September 26, 2014, R. Doc. No. 1, and a first amended
complaint on December 10, 2014, R. Doc. No. 3. The initial complaint named the City of Houma
as a defendant, R. Doc. No. 1, ¶ 5, while the first amended complaint names Terrebonne Parish
Consolidated Government as a defendant, R. Doc. No. 3, ¶ 5. The Court will address the factual
allegations as set forth in the first amended complaint. See King v. Dogan, 31 F.3d 344, 346 (5th
Cir. 1994) (“An amended complaint supersedes the original complaint and renders it of no legal
effect unless the amended complaint specifically refers to and adopts or incorporates by
reference the earlier pleading.”).
5
R. Doc. No. 3, ¶ 1. The Court notes that November 29, 2013, was the day after
Thanksgiving, i.e., “Black Friday.” See Commodari v. Long Island Univ., 89 F. Supp. 2d 353,
379 (E.D.N.Y. 2000) (“Further judicial notice is taken of the fact that November 26, 1998 was
Thanksgiving . . . .”).
2

1

automatic pistol clearly visible on his right hip.”6 Plaintiff alleges that “Walmart does not have a
policy prohibiting customers from lawfully carrying firearms on their property” and that it has a
protocol for confronting customers carrying firearms:
Walmart has a policy of permitting customers to carry firearms and to only intervene
if someone expresses concern. Walmart’s policy is that if and when someone has
expressed concern, a salaried employee approaches and addresses the armed
customer; the customer is then asked to remove the firearm from the premises.
According to Walmart policy, the customer is only to be told to leave if the customer
refuses to remove the firearm and is “extremely abusive or disruptive”; otherwise,
customers who refuse to remove the firearm are allowed to keep it and remain.
Walmart policy provides for involving law enforcement only if a customer refuses
to leave after being told to do so twice, with the second such instruction including
a notification that law enforcement will be contacted if they do not leave.7
Plaintiff asserts claims against three individuals alleged to have been involved in the events
which led to the filing of this lawsuit. Craig LeBouef is alleged to have been “at all times relevant
to this complaint an employee of Walmart, employed in a security capacity at the Walmart” and “a
retired police officer, formerly a Lieutenant of the Houma Police Department.”8 Francis Armand
Kouame is alleged to have been an Assistant Manager at the Walmart.9 Sergeant Daniel Belanger
(“Sergeant Belanger”) is alleged to have been “duly appointed and acting as an officer of the Houma
Police Department.”10 Plaintiff alleges that “Belanger was not a salaried employee of Walmart,”11
but he also appears to allege that Belanger was employed by Walmart in some capacity because

6

R. Doc. No. 3, ¶ 10.
R. Doc. No. 3, ¶ 13.
8
R. Doc. No. 3, ¶ 8. In his motion, LeBouef asserts that he retired from Walmart security
in 2012 and that he acted as a private citizen at all relevant times. R. Doc. No. 8-2, at 1. Because
this is a Rule 12(b)(6) motion to dismiss, the Court takes the well-pleaded facts of the first
amended complaint as true.
9
R. Doc. No. 3, ¶ 7.
10
R. Doc. No. 3, ¶ 6.
11
R. Doc. No. 3, ¶ 15.
7

2

“Kouame’s job responsibilities include supervising other employees, including Sgt. Belanger.”12
According to plaintiff, both LeBouef and Kouame contacted Sergeant Belanger after seeing
plaintiff in the Walmart with his gun on the day in question.13 LeBouef is alleged to have “informed
Sgt. Belanger that Walmart had a policy against customers carrying firearms, despite actual
knowledge on the part of Mr. LeBouef that this was not so.”14 Then, as plaintiff “was standing at the
sporting goods counter and had just returned a rifle to the store associate . . . he was suddenly, and
without any warning, grabbed from behind by Sgt. Belanger.”15 Ultimately, Sergeant Belanger took
plaintiff’s gun, handcuffed plaintiff, and escorted him from the Walmart.16 “Kouame was present
at and witnessed the exchange but did not intervene” and he “did not correct Sgt. Belanger’s false
statement of Walmart’s policy regarding customers with firearms.”17 Furthermore, “Kouame
physically assisted Sgt. Belanger’s seizure of Mr. Boquet’s firearm by providing an extra pair of
hands to hold the firearm” while Sergeant Belanger handcuffed plaintiff.18 Plaintiff does not allege
any facts suggesting LeBouef’s presence or involvement during this incident.
After escorting plaintiff from the Walmart in handcuffs, Sergeant Belanger “requested
backup” and another officer searched plaintiff and seized the handgun and magazine, a pocket knife,

12

R. Doc. No. 3, ¶ 27.
R. Doc. No. 3, ¶¶ 16, 17. Plaintiff alleges in the alternative that either LeBouef or
Kouame called Sergeant Belanger first. R. Doc. No. 3, ¶ 17.
14
R. Doc. No. 3, ¶ 16.
15
R. Doc. No. 3, ¶ 18.
16
See R. Doc. No. 3, ¶¶ 18-33.
17
R. Doc. No. 3, ¶ 27.
18
R. Doc. No. 3, ¶ 27; see also R. Doc. No. 3, ¶ 24 (“After some period of conversation,
Sgt. Belanger removed Mr. Boquet’s firearm, removed the magazine from the firearm, handed
the firearm to Mr. Kouame, handcuffed [plaintiff], and retrieved the firearm from Mr.
Kouame.”).
13

3

and fourteen additional rounds of ammunition.19 Plaintiff was then taken to jail.20 Plaintiff alleges
that he requested the return of the fourteen rounds of ammunition, but that “an employee of the
Houma Police Department claimed that there was a departmental policy against returning
ammunition.”21
Count one of the first amended complaint alleges state-law claims of assault, battery, and
false imprisonment against Sergeant Belanger, Kouame, and LeBouef.22 Count two of the first
amended complaint alleges state-law claims of intentional and negligent infliction of emotional
distress against Sergeant Belanger, Kouame, and LeBouef.23 Count three asserts a claim for damages
pursuant to 42 U.S.C. § 1983 against Sergeant Belanger, Kouame, LeBouef, and the Terrebonne
Parish Consolidated Government.24
STANDARD OF LAW
A district court may dismiss a complaint, or any part of it, for failure to state a claim upon
which relief can be granted if the plaintiff has not set forth a factual allegation in support of his claim
that would entitle him to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v.
Taylor, 503 F.3d 397, 401 (5th Cir. 2007). As the U.S. Court of Appeals for the Fifth Circuit
explained in Gonzalez v. Kay:
“Factual allegations must be enough to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Supreme Court
recently expounded upon the Twombly standard, explaining that “[t]o survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as

19

R. Doc. No. 3, ¶ 31-32.
R. Doc. No. 3, ¶ 33.
21
R. Doc. No. 3, at ¶ 36.
22
R. Doc. No. 3, at ¶¶ 38-48.
23
R. Doc. No. 3, at ¶¶ 49-57.
24
R. Doc. No. 3, at ¶¶ 58-71.
20

4

true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. It
follows that “where the well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged-but it has not
‘show[n]’-‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P.
8(a)(2)).
577 F.3d 600, 603 (5th Cir. 2009).
This Court will not look beyond the factual allegations in the pleadings to determine whether
relief should be granted. See Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999); Baker v.
Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In assessing the complaint, a court must accept all
well-pleaded facts as true and liberally construe all factual allegations in the light most favorable
to the plaintiff. Spivey, 197 F.3d at 774; Lowrey v. Tex. A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir.
1997).
ANALYSIS
A.

Section 1983
“To state a cause of action under section 1983 the [plaintiff] must allege that the person who

deprived him of a federal right was acting under color of law.” Priester v. Lowndes County, 354 F.3d
414, 420 (5th Cir. 2004). “For a private citizen . . . to be held liable under section 1983, the plaintiff
must allege that the citizen conspired with or acted in concert with state actors.” Id. “[A] non-state
actor may be liable under 1983 if the private citizen was ‘a willful participant in joint activity with
the State or its agents.’” Id. (quoting Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994)). “The
plaintiff must allege: (1) an agreement between the private and public defendants to commit an

5

illegal act and (2) a deprivation of constitutional rights.” Id.25
“Allegations that are merely conclusory, without reference to specific facts, will not suffice”
to allege a conspiracy. Id. (citing Brinkmann v. Johnston, 793 F.2d 111, 113 (5th Cir. 1986)). For
example, in Priester, the plaintiff attempted to allege a conspiracy between a high school football
player and coaches through allegations that the coaches “either ignored or ‘encouraged and/or
allowed’” the player’s attack on a teammate. Id. at 420. The Fifth Circuit held that these conclusory
allegations “failed to allege a conspiracy” and affirmed the Rule 12(b)(6) dismissal of the § 1983
claim against the teammate, a private citizen. See id.
Both LeBouef and Kouame move to dismiss plaintiff’s 42 U.S.C. § 1983 claim. LeBouef’s
motion to dismiss is granted as to that claim because plaintiff expressly abandoned his § 1983 claim
against LeBouef.26 Kouame contends that he is not liable pursuant to 42 U.S.C. § 1983 because he
is a private citizen, not a state actor, and because he did not personally violate any of plaintiff’s
constitutional rights.27 Plaintiff responds that he states a plausible § 1983 claim against Kouame
because Kouame allegedly was Sergeant Belanger’s supervisor and he was “not a bystander in the
incident, but instead a joint participant.”28

25

The parties refer to Morris v. Dillard Department Stores, Inc., in which the Fifth Circuit
addressed “a § 1983 claim brought against a private employer defendant . . . in which an off-duty
police officer is employed as a private security guard and detains, searches or arrests the
customer of his private employer subsequent to a report of suspicion made by another
employee.” 277 F.3d 743, 748 (5th Cir. 2001). In Morris, the Fifth Circuit stated that it “will not
subject a merchant to § 1983 liability unless an officer has failed to perform an independent
investigation.” Id. at 750 (emphasis added). But plaintiff has not sued Walmart, the merchant, so
Morris has no obvious applicability to this § 1983 claim against Kouame.
26
R. Doc. No. 9, at 2.
27
R. Doc. No. 10-2, at 7-8.
28
R. Doc. No. 12, at 2; see also R. Doc. No. 12, at 4 (“Plaintiff suggests that in physically
aiding in an arrest and property seizure by a police officer, even in a minor role, a person
becomes a state actor.”).
6

Here, Kouame is indisputably a private citizen, and no party suggests that Sergeant Belanger
was not a state actor. Accordingly, to state a claim for § 1983 liability against Kouame, plaintiff
must allege facts showing “an agreement” between Kouame and Sergeant Belanger to violate
plaintiff’s federal rights. See id. Plaintiff does not use the word “agreement” in his complaint; he
does, however, allege that Kouame (1) “saw [plaintiff] and contacted Sgt. Belanger,”29 (2) “remained
present through [plaintiff] being handcuffed and removed from the building by Sgt. Belanger,”30 (3)
held plaintiff’s gun for the period of time it took Sergeant Belanger to handcuff plaintiff,31 and (4)
“witnessed the exchange but did not intervene” and he “did not correct Sgt. Belanger’s false
statement of Walmart’s policy regarding customers with firearms.”32 Furthermore, plaintiff alleges,
albeit with less than ideal clarity, that Sergeant Belanger was an employee of Walmart and that he
was Kouame’s “subordinate.”33
Construing these factual allegations in plaintiff’s favor and drawing all reasonable inferences
from them, plaintiff has sufficiently alleged an agreement or “action in concert” between Kouame
and Sergeant Belanger to violate plaintiff’s federal rights. Standing alone, plaintiff’s allegations that
Kouame “remained present” and “witnessed the exchange but did not intervene” would be
comparable to the legally insufficient allegations of a conspiracy in Priester. But plaintiff alleges

29

R. Doc. No. 3, ¶ 17.
R. Doc. No. 3, ¶ 17.
31
R. Doc. No. 3, ¶ 24; see also R. Doc. No. 3, ¶ 27 (“Mr. Kouame physically assisted Sgt.
Belanger’s seizure of Mr. Boquet’s firearm by providing an extra pair of hands to hold the
firearm.”).
32
R. Doc. No. 3, ¶ 27.
33
R. Doc. No. 3, ¶ 27. Kouame apparently contends that “Sgt. Belanger was not a WalMart employee and was acting in his capacity as a Houma police officer at the time of the
subject incident,” but the Court must accept plaintiff’s factual allegations as true for the purposes
of deciding this Rule 12(b)(6) motion.
30

7

additional facts suggesting a degree of direct participation that was missing in Priester; specifically,
plaintiff alleges that Kouame was Sergeant Belanger’s supervisor, contacted Sergeant Belanger
about plaintiff, and “physically assisted Sgt. Belanger’s seizure of [plaintiff’s] firearm by providing
an extra pair of hands.”34 At the present stage of the proceedings, this suffices to withstand
Kouame’s Rule 12(b)(6) motion.35 Although Kouame vigorously contends that the incident was
entirely plaintiff’s fault,36 that defense is better reserved for a potential motion for summary
judgment or trial. Accordingly, Kouame’s motion to dismiss plaintiff’s § 1983 claim against him
should be denied.37
B.

State-law Claims
1.)

Assault, Battery, False Imprisonment

“Battery is a harmful or offensive contact with a person, resulting from an act intended to

34

R. Doc. No. 3, at ¶ 27.
Kouame also contends that the § 1983 claim against him should be dismissed because
none of the alleged constitutional violations “resulted from any claimed actions by Mr.
Kouame.” R. Doc. No. 10-2, at 8. As explained above, “plaintiff must allege: (1) an agreement
between the private and public defendants to commit an illegal act and (2) a deprivation of
constitutional rights.” Priester, 354 F.3d at 420. At this time, the alleged seizure of plaintiff by
Sergeant Belanger plausibly states a claim for a violation of plaintiff’s Fourth Amendment
rights. For the reasons set forth above, plaintiff has sufficiently alleged an agreement between
Sergeant Belanger and Kouame to accomplish that seizure. Kouame cites no cases for the
proposition that to be liable pursuant to § 1983 he must have directly seized plaintiff.
36
R. Doc. No. 19, at 3 (“[E]ven as alleged by plaintiff, it is clear the entire situation
resulted from plaintiff’s refusal to cooperate with commands issued to him by a uniformed police
officer.”).
37
Kouame also contends that he cannot be liable on a theory of respondeat superior based
on his alleged supervision of Sergeant Belanger. R. Doc. No. 19, at 2. “Section 1983 does not
create vicarious or respondeat superior liability. Rather, a plaintiff must show either the
supervisor personally was involved in the constitutional violation or that there is a sufficient
causal connection between the supervisor’s conduct and the constitutional violation.” Evett v.
DETNTFF, 330 F.3d 681, 689 (5th Cir. 2003) (internal quotation marks and citations omitted).
As explained above, plaintiff sufficiently alleges that Kouame was directly involved in the
constitutional violation.
35

8

cause him to suffer such a contact.” Brown v. Diversified Hospitality Grp. Inc., 600 So. 2d 902, 906
(La. App. 4 Cir. 1992). “An assault is a threat of such a harmful or offensive contact.” Id. “False
imprisonment or arrest occurs when one arrests and restrains another against his will and without
statutory authority.” Wilson v. City of Shreveport, 921 So. 2d 254, 257 (La. App. 2 Cir. 2006). “The
tort of false imprisonment consists of the following two essential elements: (1) detention of the
person; and (2) the unlawfulness of the detention.” Id.
Both LeBouef and Kouame move to dismiss plaintiff’s claims of assault, battery, and false
imprisonment. Both contend that plaintiff fails to state a claim against them for assault, battery, or
false imprisonment because only Sergeant Belanger is alleged to have physically confronted,
touched, or seized plaintiff.38
With respect to Kouame, plaintiff contends that Kouame is liable for encouraging or
facilitating Sergeant Belanger’s actions, relying on Louisiana Civil Code article 2324.39 Article 2324
states that “[h]e who conspires with another person to commit an intentional or willful act is
answerable, in solido, with that person, for the damage caused by such act.” For the same reasons
that plaintiff has alleged facts which can support a finding of a conspiracy for the purposes of § 1983
liability, plaintiff has alleged facts which, taken as true, could give rise to a conspiracy between
Kouame and Sergeant Belanger to commit assault, battery, or false imprisonment for purposes of
article 2324. Accordingly, Kouame’s motion to dismiss those claims should be denied.
With respect to LeBouef, on the other hand, plaintiff has not alleged facts sufficient to state
a claim of a conspiracy to commit any of those intentional torts. The only facts plaintiff alleges are

38
39

R. Doc. No. 8-2, at 5; R. Doc. No. 10-2, at 10.
R. Doc. No. 12, at 2-3.
9

that LeBouef “used his cell phone to summon Sgt. Belanger” and deliberately misstated the store
policy.40 In his opposition memorandum, plaintiff does not respond to LeBouef’s contention that
these allegations fail to state a claim for assault, battery, or false imprisonment, and instead defends
only his infliction of emotional distress claims as to LeBouef.41 Accordingly, the Court agrees that
plaintiff has not stated a claim against LeBouef for assault, battery, or false imprisonment, and that
LeBouef’s motion should be granted as to those claims.
2.)

Intentional Infliction of Emotional Distress

Under Louisiana law, an intentional infliction of emotional distress claim requires that 1) the
conduct of the defendant be “extreme and outrageous,” 2) the plaintiff suffer severe emotional
distress, and 3) the defendant desire to inflict the emotional distress or know that severe emotional
distress would be substantially certain to result from his conduct. White v. Monsanto Co., 585 So.
2d 1205, 1209 (La. 1991). “Louisiana courts have staunchly adhered to the standard established in
White.” LaBove v. Raftery, 802 So. 2d 566, 578 (La. 2001).
In order to be “extreme and outrageous,” the conduct “must be so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious and utterly intolerable in a civilized community. Liability does not extend to mere insults,
indignities, threats, annoyances, petty oppressions, or other trivialities.” White, 585 So. 2d at 1209.
“The extreme and outrageous character of the conduct may arise from an abuse by the actor of a
position, or a relation with the other, which gives him actual or apparent authority over the other,
or power to affect his interests.” Id. at 1209-10 (citing Restatement (Second) of Torts, § 46 cmt. d).

40
41

R. Doc. No. 3, at ¶ 16.
R. Doc. No. 9, at 2-3.
10

The Louisiana Second Circuit Court of Appeal, citing Nicholas v. Allstate Insurance Co.,
765 So. 2d 1017 (La. 2000), recently elaborated on the applicable standard for the first element:
It is not enough that the defendant acted with an intent which is tortious or even
criminal, or that he has intended to inflict emotional distress, or even that his conduct
has been characterized by “malice” or a degree of aggravation which would entitle
the plaintiff to punitive damages for another tort. Liability has been found only
where the conduct has been so outrageous in character, and so extreme in degree, as
to go beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community. Generally, the case is one in which the
recitation of the facts to an average member of the community would arouse his
resentment against the actor and leave him to exclaim, “Outrageous.”
Fletcher v. Wendelta, Inc., 999 So. 2d 1223, 1230 (La. App. 2 Cir. 2009). “[P]roving outrageous
conduct by the defendant” is a “heavy burden” for plaintiff to meet. Succession of Harvey v. Dietzen,
716 So. 2d 911, 917 (La. App. 4 Cir. 1998). “Persons must necessarily be expected to be hardened
to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and
unkind.” White, 585 So. 2d at 1209.
Both LeBouef and Kouame move to dismiss plaintiff’s claim for intentional infliction of
emotional distress. In opposition, plaintiff contends that their alleged conduct was outrageous
because it is proscribed by Louisiana Revised Statute 14:59(A)(5), which defines “criminal
mischief” as including “[g]iving of any false report or complaint to a sheriff, or his deputies, or to
any officer of the law relative to the commission of, or an attempt to commit, a crime.” But even if
the conduct plaintiff alleges violated that statute, “it is not enough that the defendant acted with an
intent which is . . . criminal.” Fletcher, 999 So. 2d at 1230. Intentional infliction of emotional
distress requires allegation of conduct “so outrageous in character, and so extreme in degree, as to
go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable
in a civilized society.” Id. Plaintiff has not alleged conduct by either LeBouef or Kouame that is so

11

outrageous as to state a claim for intentional infliction of emotional distress. Accordingly, the Court
concludes that both motions to dismiss should be granted as to the intentional infliction of emotional
distress claims.
3.)

Negligent Infliction of Emotional Distress

“Louisiana law does not generally recognize an independent cause of action for negligent
infliction of emotional distress. . . . The cause of action is available under limited circumstances
only.” DirecTV, Inc. v. Atwood, No. 03-1457, 2003 WL 22765354, at *3 (E.D. La. Nov. 19, 2003)
(emphasis added) (internal quotation marks omitted).

Recovery for negligent infliction of

emotional distress, when available, is governed by Louisiana Civil Code Article 2315 but recovery
is limited to cases presenting special “involving the ‘especial likelihood of genuine and serious
mental distress, arising from special circumstances, which serves as a guarantee that the claim is not
spurious.’” . See Powell v. Brookshire’s Grocery Co., 705 So. 2d 286, 291-92 (La. App. 2 Cir. 1997)
(quoting Moresi v. State ex. rel. Dep’t of Wildlife & Fisheries, 567 So. 2d 1081, 1096 (La. 1990)).
; see also DirecTV, 2003 WL 22765354, at *3.
“The most common thread of the special circumstances . . . cases collected in Moresi is that
each of those cases present facts proving that the defendant’s act created a very strong and obvious
likelihood that the plaintiff would suffer genuine and severe mental distress.” Covington v. Howard,
146 So. 3d 933, 940 (La. App. 2 Cir. 2014). “Typically, the defendant’s conduct under the
circumstances is deemed so unconscionable or outrageous . . . that a person of ordinary sensibilities
would suffer genuine and severe emotional distress.” Id.; see also Lester v. Sec’y of Veterans Affairs,
514 F. Supp. 2d 866, 881 (W.D. La. 2007) (“[A] plaintiff may recover for unintentional or negligent
infliction of emotional distress unaccompanied by physical injury where the defendant’s negligent

12

conduct is deemed to be outrageous.”); Harris v. St. Tammany Parish Hosp. Serv. Dist. No. 1, No.
2011-CA-0941, 2011 WL 6916523, at *16-17 (La. App. 1 Cir. Dec. 29, 2011) (affirming an award
of damages to a surviving spouse for negligent infliction of emotional distress based on a hospital’s
failure to send the deceased spouse’s body to the coroner for an autopsy after a sudden and
unexplained death).
Both LeBouef and Kouame move to dismiss plaintiff’s negligent infliction of emotional
distress claims. Plaintiff’s oppositions are conclusory and they do not cite any factually comparable
cases.42 With respect to both LeBouef and Kouame, the Court concludes that plaintiff has failed to
allege the kind of “special circumstances” and “unconscionable or outrageous conduct” that support
a claim for negligent infliction of emotional distress. See Covington, 146 So. 3d at 940. Accordingly,
LeBouef’s and Kouame’s motions to dismiss the negligent infliction of emotional distress claims
should be granted.
CONCLUSION
IT IS ORDERED that the motion to dismiss filed by defendant, Craig LeBouef, is
GRANTED and that all of plaintiff’s claims against Craig LeBouef are DISMISSED WITH
PREJUDICE.43

42

R. Doc. No. 9, at 3; R. Doc. No. 12, at 3.
Plaintiff has already amended his complaint once and, in response to LeBouef’s motion,
he did not articulate any additional specific facts he could allege against LeBouef in another
amended complaint. Accordingly, the Court finds no need to grant plaintiff leave to amend as to
LeBouef.
43

13

IT IS FURTHER ORDERED that the motion to dismiss filed by defendant, Francis
Armand Kouame, is GRANTED with respect to plaintiff’s claims for intentional and negligent
infliction of emotional distress, which claims are DISMISSED WITH PREJUDICE. Kouame’s
motion is DENIED in all other respects.
New Orleans, Louisiana, April 14, 2015.
________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

14