3601 Camp Street, LLC v. Orleans Parish School Board et al

Filing 24

ORDER & REASONS granting 7 Motion to Dismiss for Failure to State a Claim & denying as moot 11 Motion to Strike. Signed by Judge Martin L.C. Feldman on 8/5/2015. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
3601 CAMP STREET, LLC

CIVIL ACTION

v.

NO. 15-290

ORLEANS PARISH SCHOOL BOARD, ET AL.

SECTION "F"

ORDER AND REASONS
Before the Court is the Orleans Parish School Board's motion
to dismiss for failure to state a claim pursuant to Federal Rule of
Civil Procedure 12(b)(6), as well as its motion to strike an
exhibit attached to the plaintiff's opposition memorandum. For the
reasons that follow, the Orleans Parish School Board's motion to
dismiss is GRANTED and its motion to strike is DENIED as moot.
Background
This civil rights case concerns allegedly misappropriated
playground equipment.
At this stage of the proceedings, the Court takes as true the
allegations in the plaintiff's complaint.

On February 10, 2013

3601 Camp Street, LLC purchased from the Orleans Parish School
Board all property, buildings, improvements, and component parts at
3601 Camp Street, New Orleans, Louisiana.

At the time the OPSB

executed the act of sale, "Kaboom! Playground" equipment was
permanently affixed to an asphalt playground on the 3601 Camp
Street property.

1

Sometime after the sale, but before August 8, 2014, the
Recovery School District informed Lawrence D. Crocker College
Preparatory School that the playground equipment at 3601 Camp
Street was available for use by Crocker.

The OPSB, it is alleged,

then gave the RSD permission to remove from 3601 Camp Street the
playground equipment and to relocate it to Crocker. The playground
equipment was in fact removed from 3601 Camp Street. On August 8,
2014, a member of 3601 Camp Street, LLC discovered that the
playground equipment had been removed, which damaged the underlying
asphalt.
No one notified 3601 Camp Street, LLC that the playground
equipment was being removed from the property.

Rather, 3601 Camp

Street, LLC learned from a neighbor that some unidentified company
had removed the equipment; the removing company told the neighbor
that the playground equipment would be relocated to Crocker.
employee

of

Crocker

confirmed

that

the

playground

installed there was taken from 3601 Camp Street.

An

equipment

On August 8,

2014, it is alleged, counsel for the OPSB contacted a member of
3601 Camp Street, LLC, and advised that he would need the weekend
to review the act of sale to determine whether it excepted the
playground

equipment.

counsel's request.

3601

Camp

Street

granted

the

OPSB's

A few days later, 3601 Camp Street, LLC met

with representatives of the OPSB and the RSD, at which time the
parties discussed options to compensate the plaintiff for the

2

taking of the playground equipment.

No agreement was reached then

or during other settlement discussions.1
After additional efforts to settle the dispute out of court,
on January 30, 2015, 3601 Camp Street, LLC sued the Orleans Parish
School Board, the Recovery School District, and Lawrence D. Crocker
College Prep, alleging that the defendants acted under color of
state law pursuant to 42 U.S.C. § 1983 in depriving the plaintiff
of its property without any notice or a hearing in contravention of
the Fourteenth Amendment to the U.S. Constitution.

The plaintiff

seeks to recover compensatory and punitive damages, as well as
attorney's fees.

On July 14, 2015 New Orleans College Preparatory

Academies filed its Answer on behalf of Crocker; NOCPA avers that
it is the charter organizer for Lawrence D. Crocker College Prep.,
which is a Recovery School District charter school.

On July 20,

2015 the plaintiff's claims against the RSD was dismissed without
prejudice for failure to prosecute.

The OPSB now seeks to dismiss

the claim asserted against it for failure to state a claim upon

1

The plaintiff apparently rejected an offer that
included installation of comparable playground equipment from
another school and asphalt repair.
(The plaintiff submits a
December 5, 2014 letter from the OPSB's general counsel, confirming
his "disappointment" that 3601 Camp Street, LLC has rejected the
OPSB's offer.
Counsel for OPSB, ostensibly quoting from
plaintiff's counsel's December 2, 2014 letter, suggests "we are
experiencing difficulty trying to assess the monetary value of the
damages you assert in your letter, e.g. 'agreement not to press
charges, personal loss, mental anguish, and other costs related to
the theft[.]'" The defendant seeks to strike consideration of this
letter as outside the scope of its motion to dismiss.).
3

which relief may be granted.

The OPSB also seeks to strike its

December 5, 2014 letter that accompanies the plaintiff's opposition
papers.
the

The Court ordered supplemental papers addressing whether

Parratt/Hudson

doctrine

is

triggered

by

the

plaintiff's

allegations.
I.
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state
a claim upon which relief can be granted.

Such a motion is rarely

granted because it is viewed with disfavor.

See Lowrey v. Tex. A

& M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
pleading must contain a "short and plain statement of the claim
showing that the pleader is entitled to relief."

Ashcroft v.

Iqbal, 556 U.S. 662, 678-79 (2009)(citing Fed.R.Civ.P. 8).

"[T]he

pleading standard Rule 8 announces does not require 'detailed
factual allegations,' but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation."

Id. at 678 (citing

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In considering a Rule 12(b)(6) motion, the Court “accepts ‘all
well-pleaded

facts

as

true,

favorable to the plaintiff.’”

viewing

them

in

the

light

most

See Martin K. Eby Constr. Co. v.

4

Dall. Area Rapid Transit, 369 F.3d 464 (5th Cir. 2004) (quoting
Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)).

But, in

deciding whether dismissal is warranted, the Court will not accept
conclusory allegations in the complaint as true.
at 1050.

Kaiser, 677 F.2d

Indeed, the Court must first identify allegations that

are conclusory and, thus, not entitled to the assumption of truth.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). A corollary: legal
conclusions “must be supported by factual allegations.”

Id. at

678. Assuming the veracity of the well-pleaded factual allegations,
the Court must then determine “whether they plausibly give rise to
an entitlement to relief.” Id. at 679.
“‘To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.’” Gonzalez v. Kay, 577 F.3d
600, 603 (5th Cir. 2009)(quoting Iqbal, 556 U.S. at 678)(internal
quotation marks omitted).

“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. Corp. v. Twombly, 550 U.S. 544,

555 (2007) (citations and footnote omitted).

“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.”

Iqbal, 556 U.S. at 678 (“The

plausibility standard is not akin to a ‘probability requirement,’

5

but it asks for more than a sheer possibility that a defendant has
acted

unlawfully.”).

This

is

a

“context-specific

task

that

requires the reviewing court to draw on its judicial experience and
common sense.”

Id. at 679.

“Where a complaint pleads facts that

are merely consistent with a defendant’s liability, it stops short
of the line between possibility and plausibility of entitlement to
relief.” Id. at 678 (internal quotations omitted) (citing Twombly,
550 U.S. at 557).

“[A] plaintiff’s obligation to provide the

‘grounds’ of his ‘entitle[ment] to relief’”, thus, “requires more
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”

Twombly, 550 U.S. at

555 (alteration in original) (citation omitted).
Finally, “[w]hen reviewing a motion to dismiss, a district
court ‘must consider the complaint in its entirety, as well as
other sources ordinarily examined when ruling on Rule 12(b)(6)
motions to dismiss, in particular, documents incorporated into the
complaint by reference, and matters of which a court may take
judicial notice.”

Funk v. Stryker Corp., 631 F.3d 777, 783 (5th

Cir. 2011)(quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007)).
II.
The OPSB urges the Court to dismiss the plaintiff's only claim
for failure to state a claim on the ground that the plaintiff has
failed to plead facts that, if proved, would plausibly establish a

6

procedural due process violation.

The plaintiff counters that it

has stated a plausible claim because it alleges that the OPSB
caused the plaintiff to be deprived of its playground equipment and
failed to hold a pre-deprivation hearing.
the

defense

papers

in

particular,

The alleged facts, and

ostensibly

evoked,

without

explicitly invoking, the Parratt/Hudson doctrine, compelling the
Court to order supplemental papers addressing whether the doctrine
was indeed triggered.

In compliance with this Court's order, the

parties have submitted supplemental papers addressing whether the
Parratt/Hudson doctrine forecloses the plaintiff's § 1983 claim
based on the OPSB's alleged violation of 3601's procedural due
process rights.

The Court finds that it does.

Title 42, U.S.C. § 1983 creates a damages remedy for the
violation of federal constitutional or statutory rights under color
of state law; it provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State ... subjects,
or causes to be subjected, any ... person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured.
To establish § 1983 liability, the plaintiff must satisfy three
elements:
(1)

deprivation of a right secured by the U.S. Constitution
or federal law,

(2)

that occurred under color of state law, and

(3)

was caused by a state actor.
7

Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004)
(citation omitted).

Here, the plaintiff alleges that the OPSB --

by taking or authorizing the taking of its playground equipment
without a hearing -- deprived the plaintiff to its Fourteenth
Amendment right to procedural due process.
The Due Process Clause of the Fourteenth Amendment:

"[N]or

shall any State deprive any person of life, liberty, or property,
without due process of law."

Of course, "[d]ue process . . . is a

flexible concept that varies with the particular situation."
Zinermon v. Burch, 494 U.S. 113, 127 (1990).

See

"In procedural due

process claims," the Supreme Court has observed, pertinent to the
allegations of this case, "the deprivation by state action of a
constitutionally protected interest in 'life, liberty, or property'
is not itself unconstitutional; what is unconstitutional is the
deprivation of such an interest without due process of law."

See

Zinermon, 494 U.S. at 126 (citing Parratt v. Taylor, 451 U.S. 527
(1981)).
Quite rationally, the focus in a procedural due process case
is what sort of process meaningfully suits the circumstances.

The

Parratt/Hudson doctrine dictates that a state actor's random and
unauthorized deprivation of a plaintiff's property does not violate
procedural due process rights unless the State fails to provide an
adequate post-deprivation remedy.

See Woodard v. Andrus, 419 F.3d

348, 351 (5th Cir. 2005)(citation omitted); Alexander v. Ieyoub, 62

8

F.3d 709, 712 (5th Cir. 1995)(citing Hudson v. Palmer, 468 U.S.
517, 529 (1984); Parratt v. Taylor, 451 U.S. 527, 535-45 (1981),
overruled in part on other grounds, Daniels v. Williams, 474 U.S.
327 (1986))(emphasis added).2 Reasoning that States cannot predict

2

Parratt concerned a state prisoner's § 1983 claim that
prison officials, who had negligently lost materials he had ordered
by mail, had deprived him of his property without due process of
law. The Supreme Court found that, although the prisoner had been
deprived of property within the meaning of the Fourteenth Amendment
due process clause, the State's postdeprivation tort remedy (in
which he could recover the value of the materials) provided the
process that was due. 451 U.S. at 535-37. Where the loss was
caused by some random and unauthorized conduct, the Supreme Court
noted that
the loss is not a result of some established
state procedure and the State cannot predict
precisely when the loss will occur.
It is
difficult to conceive of how the State could
provide a meaningful hearing before the
deprivation took place.
Id. at 541. Thus, Parratt held that "the alleged loss, even though
negligently caused, amounted to a deprivation." Id. at 536-37.
Hudson extended Parratt to an intentional deprivation of property.
In Hudson, a prisoner alleged that a guard deliberately destroyed
his property during a search of his cell. 468 U.S. 517, 520-22.
(1984). As in Parratt, the prisoner could be compensated through
a tort remedy. Id. at 534-35 Thus, because "the state official
was not acting pursuant to any established state procedure," the
Court found that the State was not "in a position to provide for
predeprivation process.
Id. at 533 ("The state can no more
anticipate and control in advance the random and unauthorized
intentional conduct of its employees than it can anticipate similar
negligent conduct.").
In Daniels, the Supreme Court reconsidered whether a
merely negligent act of an official causing an unintended loss of
or injury to property implicated constitutional due process; the
Court "overruled Parratt to the extent that it states that mere
lack of due care by a state official may 'deprive' an individual of
life, liberty, or property under the Fourteenth Amendment." 474
U.S. at 330-31 ("[n]ot only does the word 'deprive' in the Due
Process Clause connote more than a negligent act, but we should not
9

and therefore cannot safeguard against random and unauthorized
deprivations through pre-deprivation process, the Supreme Court
held

that

adequate

post-deprivation

remedies,

remedies, are constitutionally sufficient.

such

as

tort

See Zinermon v. Burch,

494 U.S. 113, 115 (1990)(explaining that "Parratt and Hudson
represent a special case of the general Mathews v. Eldridge
analysis, in which postdeprivation tort remedies are all the
process that is due simply because they are the only remedies the
state can be expected to provide.").

In fashioning limits on the

scope of this doctrine, the Supreme Court has observed that state
officials are barred from characterizing their conduct as "random
and unauthorized" if the State had "delegated to them the power and
authority to effect the very deprivation complained of."
138.

Id. at

The Supreme Court adds this guidance:
[T]o determine whether a constitutional violation has
occurred, it is necessary to ask what process the State
provided, and whether it was constitutionally adequate.
This inquiry would examine the procedural safeguards
built into the statutory or administrative procedure of
effecting the deprivation, and any remedies for erroneous
deprivations provided by statute or tort law.

Id.

at

126

(explaining

that

"[t]he

constitutional

violation

actionable under § 1983 is not complete when the deprivation
occurs; it is not complete unless and until the State fails to

'open the federal courts to lawsuits where there has been no
affirmative abuse of power.").
Insofar as the plaintiff here
alleges mere negligence, its § 1983 procedural due process claim
falters under Daniels.
10

provide due process.").

Focusing on what sort of allegations

suffice to allege a procedural due process violation, Judge Wisdom
wrote:
Parratt held that, to allege a violation of procedural
due process, it is not sufficient simply to assert a
deprivation of a protected property interest by persons
acting under color of state law. The plaintiff must also
allege that the state procedures available for
challenging the deprivation do not satisfy the
requirements of due process. . . . Parratt recognized
that postdeprivation remedies may provide procedural due
process when predeprivation process is not practicable or
feasible. . . .
Thibodeaux v. Bordelon, 740 F.2d 329, 334 (5th Cir. 1984).3
Applying these principles here, the Court turns to consider
the plaintiff's allegations concerning (a) the nature of the

3

Placing Parratt in context, Judge Wisdom explained:

The "touchstone" of procedural due process is
"protection
of
the
individual
against
arbitrary action of government." . . . The
goal of procedural due process analysis is to
determine whether a state has provided
adequate procedures to minimize efficiently
the
risk
of
arbitrary
or
erroneous
deprivations of . . . property. . . .
The
analysis requires consideration of three
distinct [Mathews v. Eldridge, 424 U.S. 319,
335 (1976) factors:] [1] the private interest
that will be affected; [2] the risk of an
erroneous deprivation of such interest . . .
and the probable value, if any, of additional
or substitute procedural safeguards; and [3]
the [state] interest, including the function
involved and the fiscal and administrative
burdens that the additional or substitute
procedural requirement would entail.
Id. at 336 (internal citations omitted).
11

deprivation, (b) whatever procedural safeguards are built into the
statutory

or

administrative

procedure

used

to

effect

the

deprivation, and, finally, (c) any remedies provided by statute or
tort law.

Because the plaintiff alleges a random and unauthorized

deprivation that was not driven pursuant to any statutory or
administrative protocol, and for which the State could not be
expected to provide predeprivation process, the Parratt/Hudson
doctrine applies.

Furthermore, because the State provides a

meaningful postdeprivation remedy in the form of a tort claim, the
requirements

of

due

process

are

satisfied.

The

plaintiff's

complaint must be dismissed as a matter of law.
Pursuant to an act of cash sale on February 10, 2013, the OPSB
sold to 3601 Camp Street, LLC the property at 3601 Camp Street;
that sale included the Kaboom! playground equipment affixed to the
asphalt there.

More than a year later, without permission of or

notification to 3601 Camp Street, LLC, the playground equipment was
removed (and the asphalt consequently damaged) and relocated to
Crocker.

The taking was effected by the OPSB, or in any event

occurred as a result of the OPSB's authorization.

After the

playground equipment was removed, counsel for the OPSB asked the
plaintiff for some time for him to examine the act of sale to
determine whether it excepted the playground equipment.

The

parties

the

later

"discussed

different

plaintiff for the wrongful taking."

12

options

to

compensate

But no agreement was reached.

Viewing these skimpy allegations in the light most favorable to the
plaintiff, some unidentified state actor, without authorization,
converted the plaintiff's playground equipment for another state
use. This, the plaintiff alleges, violated its right to procedural
due process. But, doctrinally, the right to procedural due process
is not offended unless the State fails to provide an adequate postdeprivation remedy.
provided

with

(but

The plaintiff ostensibly alleges that it was
declined

the

State's

offer

of)

a

post-

deprivation remedy, but even if it had not so alleged, Louisiana
affords the plaintiff a tort claim for conversion.
The plaintiff presses that the Parratt/Hudson doctrine is not
applicable, insisting that a predeprivation hearing was required
before its playground equipment was wrongfully taken. But even the
plaintiff alleges that the very nature of the deprivation was
unpredictable, begging the Court to question how a predeprivation
hearing would be possible under the circumstances of the alleged
unauthorized taking.4

"The central question in determining the

applicability of Parratt, is whether it is practicable for the
state to provide a predeprivation hearing."

Thibodeaux, 740 F.2d

at 336 (citing Hudson, 468 U.S. 571 (1984)("The controlling inquiry

4

Although the plaintiff has been on notice that its only
claim was in peril (by the defendants' motion to dismiss and by the
Court's order requiring submission of supplemental papers), there
has been no request to amend the complaint.
Nowhere does the
plaintiff allege any custom, practice, or established procedure of
the OPSB or the State to convert property to its own use after it
has been sold to a private company.
13

is

solely

whether

the

State

predeprivation process.")).

is

in

a

position

to

provide

The plaintiff fails to persuasively

argue, let alone allege, how a predeprivation hearing would be
feasible here.5

Based on the plaintiff's own allegations, the

State could not have predicted that the defendant officials or
school board employees would steal or authorize the taking of the
playground equipment more than a year after the school board had
sold the property.
defendants'

alleged

Here, the plaintiff's allegations place the
intentional6

conduct

in

the

"random

and

unauthorized" category, of the same sort involved in Parratt and
Hudson.
Accordingly, for the foregoing reasons, IT IS ORDERED: that
the OPSB's motion to dismiss for failure to state a claim is hereby
GRANTED.

Because the plaintiff has failed to allege a plausible §

1983 claim for a violation of procedural due process -- the only
claim alleged -- the plaintiff's complaint is hereby dismissed,

5

Indeed, it would be irrational to suggest that the
State fashion a rule -- "Do not remove property from property
previously sold to a private party" -- forbidding a school board
official from authorizing the theft of playground equipment affixed
to property the State had sold months earlier. Similarly, it would
be absurd to suggest that the State hold a hearing to determine
whether a school board official should engage in such conduct.
6

As previously noted, insofar as the plaintiff's
allegations can be read to suggest merely negligent conduct (see,
e.g., the complaint at paragraph 19, where the plaintiff alleges
that the OPSB's general counsel needed time to determine whether or
not the playground equipment was excepted from the sale), the
plaintiff likewise may not recover as a matter of law.
14

without prejudice to its pursuit of any postdeprivation tort, or
other, remedy.7

Finally, the OPSB's motion to strike is hereby

DENIED as moot.
New Orleans, Louisiana, August 5, 2015

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

7

For the same reasons, the plaintiff's same claim
against New Orleans College Preparatory Academies, incorrectly
identified by the plaintiff as Crocker, is also dismissed.
15