Nasim v. Goodly et al

Filing 13

ORDER granting 6 Motion to Dismiss for Failure to State a Claim. Signed by Judge Jay C. Zainey. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GHULAM NASIM

CIVIL ACTION

VERSUS

NO: 14-2647

COMMANDER GOODLY, ET AL.

SECTION: "A" (1)

ORDER AND REASONS
Before the Court is a Motion to Dismiss (Rec. Doc. 6) filed
by defendant Orleans Parish District Attorney, Leon Cannizzaro.
Plaintiff Ghulam Nasim has not filed any opposition. The motion,
set for hearing on January 14, 2015, is before the Court on the
briefs without oral argument. For the reasons that follow, the
motion is GRANTED.
I.

BACKGROUND
Plaintiff Ghulam Nasim claims that on November 22, 2013,

four unknown men assaulted him as he was waiting for a taxi cab
at the 1400 block of North Broad Avenue. Plaintiff alleges that
the four men struck him repeatedly and demanded money. Plaintiff
alleges that the defendants have not contacted him regarding the
incident that occurred, despite a request filed with Commander
Goodly’s office as to the status of capturing the assailants.1
(Rec. Doc. 1 Comp. at 3). Plaintiff broadly alleges that the
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The Court notes that Plaintiff sent letters regarding this
incident to defendant Goodly, defendant Cannizzaro, and Mayor
Mitchell J. Landrieu. (Rec. Doc. 1-1, at 2, 5, 14).
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named defendants conspired to cover-up and derail Plaintiff’s
case, which violated “fundamental rules of justice.” (Rec. Doc. 1
Comp. at 4).
Plaintiff filed this Complaint pro se on November 19, 2014
seeking damages for (1) past, present, and future physical pain
and suffering; (2) past, present, and future mental pain and
suffering; (3) past, present, and future medical and hospital
bills; (4) loss of personal property stolen by the assailants;
and (5) all legal costs. Plaintiff claims that he is entitled to
these damages, amounting to four million dollars plus interest
and legal costs, as a result of defendants’ “willful negligence.”
Defendant Cannizzaro moves to dismiss Plaintiff’s complaint
for failure to state a claim upon which relief can be granted and
upon the basis of absolute immunity. (Rec. Doc. 6-1 Comp. at 1).
II.

STANDARD OF REVIEW
In the context of a motion to dismiss the Court must accept

all factual allegations in the complaint as true and draw all
reasonable inferences in the plaintiff’s favor. Lormand v. US
Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009) (citing Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007); Scheuer
v. Rhodes, 416 U.S. 232, 236 (1974); Lovick v. Ritemoney, Ltd., 378
F.3d 433, 437 (5th Cir. 2004)). However, the foregoing tenet is
inapplicable to legal conclusions. Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009). Thread-bare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.

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Id. (citing Bell Atlantic Corp. v. Twombly, 550, U.S. 544, 555
(2007)).
The central issue in a Rule 12(b)(6) motion to dismiss is
whether, in the light most favorable to the plaintiff, the
complaint states a valid claim for relief. Gentilello v. Rege, 627
F.3d 540, 544 (5th Cir. 2010) (quoting Doe v. MySpace, Inc., 528
F.3d 413, 418 (5th Cir. 2008)). To avoid dismissal, a plaintiff
must plead sufficient facts to “state a claim for relief that is
plausible on its face.” Id. (quoting Iqbal, 129 S. Ct. at 1949). “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. The Court
does not accept as true “conclusory allegations, unwarranted
factual inferences, or legal conclusions.” Id. (quoting Plotkin v.
IP Axess, Inc., 407 F.3d 690, 696 (5th Cir. 2005)). Legal
conclusions must be supported by factual allegations. Id. (quoting
Iqbal, 129 S. Ct. at 1950).
Pro se pleadings must be given the benefit of liberal
construction. Cooper v. Sheriff of Lubbock Cnty., 929 F.2d 1078,
1081 (5th Cir. 1991). On the other hand, pro se litigants are not
exempt from the requirement that they plead sufficient facts to
allege a plausible claim for relief or from the principle that mere
legal conclusions do not suffice to prevent dismissal. Taylor v.
Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (citing
Christian Leader. Conf. v. Sup. Ct. of La., 252 F.3d 781, 786 (5th

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Cir. 2001)).

III. DISCUSSION
Prosecutors are entitled to absolute immunity when acting
within the scope of their prosecutorial duties. Imbler v.
Pachtman, 424 U.S. 409 (1976). Closely related to the application
of this immunity, the Fifth Circuit has stated that there is no
constitutional right to have another person criminally
prosecuted. Oliver v. Collins, 914 F.2d 56, 60 (5th Cir.
1990)(citing Oliver v. Collins, 904 F.2d 278, 281 (5th Cir.
1990)). Initiating, investigating, and pursuing a criminal
prosecution are all generally considered to be within the scope
of protected prosecutorial duties. Cook v. Houston Post, 616 F.2d
791, 793 (5th Cir. 1980). This absolute immunity applies even in
the face of allegations of "reprehensible" or "abhorrent"
conduct. See Morrison v. City of Baton Rouge, 761 F.2d 242, 248
(5th Cir. 1985).
Plaintiff's general allegation that defendant Cannizzaro has
failed to initiate a prosecution against the alleged perpetrators
as part of a conspiracy to cover up this crime falls clearly
under the scope of Imbler and the line of Fifth Circuit cases
referenced above. See Morrison, 761 F.2d at 248 (holding that
prosecutorial absolute immunity applies where the plaintiff
alleged, among other things, that defendants engaged in a
conspiracy to cover up the details surrounding their son's

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death). Thus, Plaintiff's claims against defendant Cannizzaro
must be dismissed.
Further, the Court notes that 28 U.S.C. § 1915 gives the
courts the authority to dismiss the claims of a plaintiff
proceeding in forma pauperis if the Court determines, at any
point, that "the action . . . is frivolous or malicious; fails to
state a claim on which relief may be granted; or seeks monetary
relief against a defendant who is immune from such relief." 28
U.S.C. 1915; see Newsome v. EEOC, 301 F.3d 227, 231-33 (5th Cir.
2002).
The Fifth Circuit has explicitly upheld a finding that a
complaint was frivolous under 28 U.S.C. § 1915 due to the clear
application of prosecutorial immunity. Boyd v. Biggers, 31 F.3d
279, 285 (5th Cir. 1994). Consistent with that precedent, this
Court holds that the claims stated against defendant Cannizzaro
are frivolous. As identical claims are stated against the other
defendants in this case, the Court also finds those claims to be
frivolous. See Oliver, 904 F.2d at 281 ("Even if [the sheriff]
was the person with the authority to decide whether or not to
pursue criminal charges, [the plaintiff] would have no claim
[because of absolute immunity].").
Finally, the Court finds that Plaintiff has pleaded his
"best case" and thus will not be permitted to amend his
Complaint. Brewster v. Dretke, 587 F.3d 764, 767–68 (5th Cir.

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2009)(citing Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir.
1998)). Given the presence of absolute immunity and the
controlling precedent in this Circuit as to allegations similar
to those stated by Plaintiff, further amendment based on these
facts would not cure the Complaint's current deficiencies.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion to Dismiss (Rec. Doc. 6) filed
by defendant Orleans Parish District Attorney, Leon Cannizzaro,
is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s complaint, pursuant
to 28 U.S.C. § 1915(e)(2)(B), is DISMISSED WITH PREJUDICE as to
all claims against all defendants.

February 12, 2015
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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