Payne v. Hammond City et al

Filing 106

ORDER: IT IS HEREBY ORDERED that Defendant Roddy Devall's 65 Reurged Motion to Dismiss is GRANTED IN PART AND DENIED IN PART. The motion is GRANTED to the extent it seeks dismissal of Payne's Section 1983 claim and her conspiracy claim. T he motion is DENIED WITHOUT PREJUDICE to the extent it seeks dismissal of Payne's FMLA claim and Louisiana Revised Statute 33:2214(B)(1) claim. IT IS FURTHER ORDERED that Payne is granted leave to amend her complaint by April 19, 2017. If Payne is unable to cure the deficiencies in the complaint by that time, upon motion by a party, the Court will dismiss Payne's claims pursuant to the FMLA and Louisiana Revised Statute 33:2214(B)(1) against Devall. Signed by Judge Nannette Jolivette Brown on 3/29/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JENNIFER PAYNE

CIVIL ACTION

VERSUS

NO. 15-1022

HAMMOND CITY, et al.

SECTION: “G”(3)
ORDER

Before the Court is Defendant Roddy Devall’s (“Devall”) “Reurged Motion to Dismiss.”1
After considering the motions, the memorandum in support, the memorandum in opposition, the
record, and the applicable law, the Court will grant the motion in part and deny it in part.
I. Background
A.

Factual Background
In this case, Plaintiff Jennifer L. Payne (“Payne”) alleges that Hammond City, Chief of

Police Devall, police officer Rodney Gemar (“Gemar”), Lieutenant Vince Giannoble, City of
Hammond Mayor Foster, DEA Senior Investigator Alan J. Clesi (“Clesi”), and Task Force Officer
Donald Herrmann (“Herrmann”) collectively violated 42 U.S.C. § 1983 by falsely accusing and
investigating her for “doctor shopping” when she took leave to which she was entitled under the
Family Medical Leave Act (“FMLA”).2 According to Payne, she began working for the Hammond
Police Department as a police officer in July of 2000, taking sick leave from September 30, 2013

1

Rec. Doc. 65.

2

Rec. Doc. 1 at 4–5.

1

to April 16, 2014.3 Payne alleges that she was then improperly asked for her medical records and
warned about “doctor shopping.”4 According to Payne, in March of 2014, Devall, the chief of
police, acting as an anonymous source, contacted the DEA to inform the agency that Payne was
doctor shopping.5 Payne alleges that DEA agents Clesi and Herrmann then visited and interviewed
all of Payne’s medical and dental care providers without her consent, a warrant, or a subpoena,
and that all of the providers signed declarations stating that she was doctor shopping and obtaining
controlled substances by fraud and deceit.6
According to Payne, on April 16, 2014, Devall placed her on administrative leave without
the possibility of working details, and on April 29, 2014, Payne was falsely arrested by Gemar,
liaison officer with the DEA, in retaliation for exercising her legal rights.7 Payne alleges that,
following the arrest, Devall ordered that her photo and home address be publicized in the press, in
violation of state law and Hammond Police General Orders, and that this publication subjected
both Payne and her children to danger.8
B.

Procedural Background
Payne filed a complaint in this matter on April 1, 2015, asserting that Defendants violated

her constitutional rights, namely by invading her privacy, falsely arresting her, failing to train and

3

Id. at 4.

4

Id.

5

Id. at 5.

6

Id.

7

Id. at 6.

8

Id.

2

supervise employees, and retaliating against her.9 On April 2, 2015, Payne filed an amended
complaint adding claims on behalf of her minor children, as well as claims under the FMLA and
City of Hammond General Orders.10
Devall filed an answer on August 3, 2015, in which he raised the defense of qualified
immunity.11 Hammond City and Foster filed an answer on August 24, 2015, also invoking the
defense of qualified immunity,12 and on the same day filed a “Motion for Rule 7(a)(7) Reply on
Mayson Foster’s Qualified Immunity.”13 On November 17, 2015, Devall filed a “Motion to
Dismiss.”14 Plaintiff filed a memorandum in opposition on December 1, 2015.15
On March 15, 2016, the Court issued an order granting Hammond City and Foster’s
“Motion for Rule 7(a)(7) Reply on Mayson Foster’s Qualified Immunity,” and granting in part
Devall’s “Motion to Dismiss.”16 The Court directed Payne to file a Rule 7(a)(7) reply in response
to Defendants’ assertions of qualified immunity.17 The Court further ordered that in her Rule
7(a)(7) reply, Payne shall: “delineate specific, concrete facts and dates which pertain to the alleged
violations of Plaintiff’s rights by these defendants in contravention of 42 U.S.C. § 1983;” “clearly
plead the facts regarding each defendant’s personal involvement in each type of claim asserted by

9

Id. at 6–7.

10

Rec. Doc. 3.

11

Rec. Doc. 19.

12

Rec. Doc. 27.

13

Rec. Doc. 28.

14

Rec. Doc. 47.

15

Rec. Doc. 48.

16

Rec. Doc. 49.

17

Id. at 31.

3

Plaintiff;” and “clearly plead the facts that she believes would overcome Defendants’ claims to
qualified immunity.”18
On April 14, 2016, Payne filed a Rule 7(a)(7) reply.19 On April 28, 2016, Devall filed a reurged motion to dismiss.20 On May 31, 2016, Payne filed an opposition to Devall’s motion.21
II. Parties’ Arguments
A.

Devall’s Arguments in Support of the Re-urged Motion to Dismiss
Devall moves the Court to dismiss all claims pending against him pursuant to Rule 12(b)(6)

and on the basis of qualified immunity.22 Devall adopts all arguments set forth in his prior motion
to dismiss and in the motion to dismiss filed by the Hammond Defendants.23 Devall notes that
Payne brings claims against him pursuant to the FMLA, Section 1983, and a conspiracy claim to
violate the Fourth Amendment under Section 1983.24 Devall asserts that Payne has failed to state
a claim upon which relief can be granted and that “Devall’s properly asserted defense of qualified
immunity bars relief under §1983.”25
Devall contends that Payne has failed to allege any Fourth Amendment violation by

18

Id.

19

Rec. Doc. 54.

20

Rec. Doc. 65.

21

Rec. Docs. 74, 75.

22

Rec. Doc. 65 at 1.

23

Rec. Doc. 65-1 at 1.

24

Id. at 3.

25

Id.

4

Devall.26 He asserts that he did not seize Payne’s medical information.27 He argues that the Rule
7(a)(7) reply only alleges that he may have contacted the DEA to make an allegation against Payne
and that he allegedly met with the DEA regarding a “possible” case.28 Furthermore, Devall avers
that Payne failed to allege that he did anything in furtherance of the alleged seizure of her medical
information.29 Therefore, Devall asserts that Payne has failed to set forth any plausible basis for
holding him liable for any Fourth Amendment violation or any act he committed in furtherance of
a conspiracy.30
Devall notes that Payne cites Louisiana Revised Statute § 40:2532, which he contends only
bars the release of a law enforcement officer’s personal information when there is an internal
investigation of the law enforcement officer for disciplinary purposes.31 Devall contends that
Louisiana Revised Statute § 40:2532 does not apply to criminal investigations, and so it does not
create a clearly established right of privacy.32 Moreover, Devall notes that Article 228 of the
Louisiana Code of Criminal Procedure mandates the release of “booking information” gathered on
all persons, making booking information a public record.33 Therefore, Devall contends that there
is no case clearly establishing that release of booking information on a law enforcement officer

26

Id.

27

Id.

28

Id.

29

Id.

30

Id. at 4.

31

Id.

32

Id.

33

Id.

5

charged with a crime violates his or her right of privacy.34
Next, Deval argues that Payne’s claim against him under the FMLA must fail because
Payne did not qualify for the FMLA.35 Devall notes that Payne was on sick leave from September
30, 2013 to April 16, 2014, a period in excess of 12 weeks.36 Devall contends that the FMLA only
offers protection for a 12 week period.37 Even taking Payne’s allegation that Devall expressed his
dissatisfaction with Payne taking medical leave as true, Devall asserts that this does not rise to the
level of an actionable FMLA violation.38 Moreover, Devall asserts that it was not an FMLA
violation to place Payne on administrative leave the day she returned from her FMLA leave
because the 12 week period had expired and Payne was no longer protected under the FMLA.39
B.

Payne’s Arguments in Opposition to the Motion to Dismiss
In opposition, Payne asserts that she has adequately stated a claim under Section 1983

against Devall for violating her Fourth Amendment rights.40 Payne contends that Devall contacted
the DEA to report that Payne was doctor shopping.41 Payne argues that Devall disseminated her
private medical information to others by taking information from the Human Resources
Department regarding Payne’s medical condition and providing it to other officers.42 As a result

34

Id. at 5 (citing Johnson v. City of Pineville, 9 So. 3d 313 (La. App. 3 Cir. 2009)).

35

Id.

36

Id.

37

Id.

38

Id.

39

Id. at 5–6.

40

Rec. Doc. 74 at 7.

41

Id. at 8.

42

Id.

6

of these unfounded accusations, Payne contends that the DEA agents obtained Payne’s medical
information without her consent or a warrant.43 Because Payne had a reasonable expectation of
privacy in her medical information, she argues that Devall’s actions amount to a violation of her
Fourth Amendment right against unreasonable searches and seizures, which led to her false
arrest.44
Payne notes that for a police chief to be liable under Section 1983, he “must either be
personally involved in the acts causing the deprivation of an individual’s constitutional rights, or
there must be a causal connection between an act of the police chief and the constitutional violation
sought to be redressed.”45 Here, Payne contends that Devall personally started the investigation
into the alleged doctor shopping, placed Payne on leave, and ordered her arrest.46 Payne also
contends that Devall violated her privacy by ordering that Payne’s photo and address be publicized
in the press.47 Payne avers that Devall’s motivation for initiating the investigation into her “doctor
shopping” was to punish her for taking sick leave.48 Upon information and belief, Payne alleges
that Devall told Gemar to do whatever he had to do, in order to “get rid” of Payne.49 Therefore,
Payne argues that her rights were violated under Devall’s “leadership and pursuant to his orders.”50

43

Id.

44

Id.

45

Id. at 9 (quoting Harvey v. Andrist, 754 F.2d 569, 572 (5th Cir. 1985)).

46

Id.

47

Id.

48

Id.

49

Id.

50

Id. at 10.

7

Next, Payne asserts that she has stated a claim against Devall for violating Louisiana
Revised Statute § 40:2532 by releasing Payne’s address and photograph.51 Payne contends that
Louisiana law prohibits releasing to the news media a law enforcement officer’s home address or
photograph.52 Payne argues that she was an active police officer when she was arrested and so
Louisiana Revised Statute § 40:2532 barred Devall from releasing her information.53 Moreover,
Payne notes that other officers have been arrested since her arrest in April 2014, and their personal
information was not reported to the press.54
Finally, Payne contends that she has stated a claim against Devall under the FMLA and
Louisiana Revised Statute § 33:2215(B)(1).55 Payne asserts that Devall acted as her employer
when he placed her on leave.56 She argues that Devall placed her on leave the day she returned to
work, which she contends shows a causal connection between her leave and his decision to retaliate
against her.57 She asserts that the discovery process will produce further evidence that her rights
under the FMLA were violated, but she contends that she has plainly stated a claim that Devall
violated her rights by placing her on administrative leave the day she returned from FMLA leave.58
Additionally, Payne contends that Devall is liable under Louisiana Revised Statute

51

Id.

52

Id. (citing La. Rev. Stat. § 40:2532).

53

Id.

54

Id. at 11.

55

Id.

56

Id. at 12.

57

Id.

58

Id.

8

§ 33:2214(B)(1), which she argues grants each employee of the police department of a
municipality 52 weeks of sick leave per calendar year.59
III. Law and Analysis
A.

Standard on a Motion to Dismiss
The Federal Rules of Civil Procedure provide that an action may be dismissed “for failure

to state a claim upon which relief can be granted.”60 “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible
on its face.’”61 “Factual allegations must be enough to raise a right to relief above the speculative
level,”62 and a claim is facially plausible when the plaintiff has pled facts that allow the court to
“draw a reasonable inference that the defendant is liable for the misconduct alleged.”63 If factual
allegations are insufficient to raise a right to relief above the speculative level, or if it is apparent
from the face of the complaint that there is an “insuperable” bar to relief, the claim must be
dismissed.64
B.

Legal Standard on Qualified Immunity
To plead a Section 1983 claim, a plaintiff is required to allege facts demonstrating that: (1)

the defendant violated the Constitution or federal law, and (2) that the defendant was acting under

59

Id.

60

Fed. R. Civ. P. 12(b)(6).

61

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2008)).

62

Twombly, 550 U.S. at 556.

63

Id. at 570.

64

Moore v. Metro. Human Serv. Dep’t, No. 09-6470, 2010 WL 1462224, at * 2 (E.D. La. Apr. 8, 2010)
(Vance, C.J.) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)); Carbe v. Lappin, 492 F.3d 325, 328 & n.9 (5th Cir.
2007).

9

the color of state law while doing so.65 The doctrine of qualified immunity protects government
officials “from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”66
Qualified immunity is an “immunity from suit rather than a mere defense to liability.”67 In this
manner, “[o]ne of the most salient benefits of qualified immunity is protection from pretrial
discovery, which is costly, time-consuming, and intrusive.”68 Once a defendant invokes the
defense of qualified immunity, the plaintiff carries the burden of demonstrating its
inapplicability.69
In Saucier v. Katz, the Supreme Court set forth a two-part framework for analyzing whether
a defendant was entitled to qualified immunity. 70 Part one asks the following question: “Taken in
the light most favorable to the party asserting the injury, do the facts alleged show the officer’s
conduct violated a constitutional right?”71 Part two inquires whether the allegedly violated right is
“clearly established” in that “it would be clear to a reasonable officer that his conduct was unlawful
in the situation he confronted.”72 The Court does not have to address these two questions
sequentially; it can proceed with either inquiry first.73

65

See Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 252–53 (5th Cir. 2005).

66

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

67

Pearson v. Callahan, 555 U.S. 223, 237 (2009).

68

Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012).

69

Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009).

70

533 U.S. 194 (2001).

71

Id. at 201.

72

Id. at 202.

73

See Pearson, 555 U.S. at 236 (“On reconsidering the procedure required in Saucier, we conclude that,
while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory.”); see also Cutler

10

In the context of a motion to dismiss, “a district court must first find ‘that the plaintiff’s
pleadings assert facts which, if true, would overcome the defense of qualified immunity.’”74
Heightened pleading in qualified immunity cases requires that plaintiffs “rest their complaint on
more than conclusions alone and plead their case with precision and factual specificity.”75 “Thus,
a plaintiff seeking to overcome qualified immunity must plead specific facts that both allow the
court to draw the reasonable inference that the defendant is liable for the harm he has alleged and
that defeat a qualified immunity defense with equal specificity.”76
C.

Analysis
1.

Whether Devall is Entitled to Qualified Immunity on Payne’s Section 1983
Claims

Devall asserts that his “properly asserted defense of qualified immunity bars relief under
§1983.”77 Moreover, Devall contends that Payne has failed to allege any Fourth Amendment
violation by Devall.78 Devall avers that Payne failed to allege that he did anything in furtherance
of the alleged seizure of her medical information.79 Therefore, Devall asserts that Payne has failed
to set forth any plausible basis for holding him liable for any Fourth Amendment violation or any

v. Stephen F. Austin State Univ., 767 F.3d 462, 469 (5th Cir. 2014).
74

Backe, 691 F.3d at 648 (quoting Wicks v. Miss. State Emp’t Servs., 41 F.2d 991, 994 (5th Cir. 1995)).

75

Nunez v. Simms, 341 F.3d 385, 388 (5th Cir. 2003) (citing Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir.

76

Backe, 691 F.3d at 645.

77

Rec. Doc. 65-1 at 3.

78

Id.

79

Id.

1989)).

11

act he committed in furtherance of a conspiracy.80 In opposition, Payne asserts that she has
adequately stated a claim under Section 1983 against Devall for violating her Fourth Amendment
rights.81 Payne contends that Devall personally started the investigation into the alleged doctor
shopping, placed Payne on leave, and ordered her arrest.82 Payne also argues that Devall
disseminated her private medical information to others by taking information from the Human
Resources Department regarding Payne’s medical condition and providing it to other officers.83
Payne also contends that Devall violated her privacy by ordering that Payne’s photo and address
be publicized in the press.84
“Qualified immunity shields government officials from liability when they are acting
within their discretionary authority and their conduct does not violate clearly established statutory
or constitutional law of which a reasonable person would have known.”85 As stated supra, the
qualified immunity analysis consists of two inquiries: (1) whether, taken in the light most favorable
to the plaintiffs, the facts alleged show that the officer’s conduct violated a constitutional right;
and, if the plaintiff sufficiently alleges a violation of a constitutional right, then (2) whether the
right was clearly established at the time of the incident, such that it is “sufficiently clear that a
reasonable official would understand that what he is doing violates that right.”86 The Fifth Circuit

80

Id. at 4.

81

Rec. Doc. 74 at 7.

82

Id. at 9.

83

Id. at 8.

84

Id. at 9.

85

Gates v. Texas Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 418–19 (5th Cir. 2008) (citing
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Wallace v. County of Comal, 400 F.3d 284, 289 (5th Cir. 2005)).
86

Id.; Aucoin v. Haney, 306 F.3d 268, 272 (5th Cir. 2002)).

12

has further determined that, if the law was clearly established, then courts must decide whether the
defendant’s conduct was objectively reasonable.87 A government official’s conduct is objectively
reasonable when “all reasonable officials in the defendant’s circumstances would have then known
that the conduct violated the Constitution.”88
Here, Payne alleges in her complaint and her Rule 7(a)(7) reply that: (1) in March of 2014,
Devall, acting as an anonymous source, contacted the DEA Tactical Diversion Division to tell
them that Payne was doctor shopping in the area of Hammond, Louisiana;89 (2) Devall told Gemar
to do whatever he had to do, in order to “get rid” of Payne;90 (3) Devall was heavily involved in
the investigation from the beginning and was sent all evidence against Payne;91 (4) on April 2,
2014, Devall, Gemar, Clesi, and Herrmann, met at the Hammond Police station to discuss Payne
and a possible case against her;92 (5) in a verified petition filed in state court Devall stated that he
had spoken with an assistant district attorney on two occasions, and she advised him that the
probable criminal charges against Payne were prosecutable;93 (6) on April 16, 2014, Devall placed
Payne on administrative leave without the possibility of working details and threatened that her
retirement would be taken away if she were charged with “doctor shopping;”94 and (7) after

87

Id.

88

Id. (citing Hampton v. Oktibbeha County Sheriff Dep’t, 480 F.3d 358, 363 (5th Cir. 2007)).

89

Rec. Doc. 1 at ¶ 19; Rec. Doc. 54 at ¶ 9.

90

Id. at ¶ 14.

91

Id. at ¶ 15.

92

Id. at ¶ 16.

93

Rec. Doc. 1 at ¶ 21.

94

Id. at ¶ 24; Rec. Doc. 54 at ¶ 27.

13

Payne’s arrest, Devall specifically and directly ordered that her photo and home address be
publicized in the press.95 Thus, Payne asserts that Devall is liable because he “personally started
the investigation into the alleged doctor shopping, placed Ms. Payne on leave and ordered her
arrest.”96 Payne also contends that Devall violated her privacy rights by ordering that her “photo
and address be publicized in the press.”97
First, the Court will consider whether Devall is entitled to qualified immunity against
Payne’s allegation that Devall started the investigation into the alleged doctor shopping, placed
Payne on leave,98 and ordered her arrest for doctor shopping. Commencing with the second prong
of the Saucier framework, in a recent Order granting qualified immunity to DEA agents Clesi and
Herrmann and Officer Gemar, this Court determined that Payne had not shown that it was clearly
established that interviewing a doctor regarding alleged criminal activity of a patient without a
warrant or the patient’s consent violated the patient’s constitutional rights.99 Likewise, here the
Court finds that Payne has also not shown that it is a violation of a clearly established right for an
individual to report alleged doctor shopping to the DEA, placing an individual on administrative
leave following an arrest, or order an individual’s arrest based on an investigation that gathered
information from doctors regarding alleged criminal activity. Even construing Payne complaint
liberally to allege that Devall “directed” the DEA agents to start the investigation, which Payne

95

Rec. Doc. 1 at ¶ 25; Rec. Doc. 54 at ¶ 32.

96

Rec. Doc. 74 at 9.

97

Id.

98

To the extent Payne argues that Devall placing her on administrative leave violated the FMLA that issue
is discussed infra.
99

Rec. Doc. 104.

14

alleges included investigatory techniques that violated her constitutional rights, Payne has not
shown that it was clearly established that interviewing a doctor regarding alleged criminal activity
of a patient without a warrant or the patient’s consent violated the patient’s constitutional rights.100
Therefore, Payne has failed to satisfy the second prong necessary to overcome Devall’s qualified
immunity defense. Accordingly, the Court finds that Devall is entitled to qualified immunity on
Payne’s claim under Section 1983 that Devall began an investigation against her and ordered her
arrest.
The Court also notes that Payne argues in her opposition to Devall’s motion that Devall
disseminated her private medical information to others by taking information from the Human
Resources Department regarding Payne’s medical condition and providing it to other officers.101
However, Payne did not make any such allegation in her complaint or her Rule 7(a)(7) reply. Even
if the Court were to consider this additional allegation, “a plaintiff seeking to overcome qualified
immunity must plead specific facts that both allow the court to draw the reasonable inference that
the defendant is liable for the harm [s]he has alleged and that defeat a qualified immunity defense
with equal specificity.”102 The Court provided Payne with an opportunity to file a Rule 7(a)(7)
reply, and she failed to allege any specific facts regarding Devall’s alleged dissemination of her
private medical information to other officers in the Hammond Police Department. Thus, Payne has
failed to overcome Devall’s qualified immunity defense by failing to show either (1) a
constitutional violation or (2) that the right was clearly established.

100

Id.

101

Rec. Doc. 74 at 8.

102

Backe, 691 F.3d at 645.

15

Second, the Court will consider whether Devall is entitled to qualified immunity against
Payne’s allegation that Devall violated her privacy rights by ordering that her photo and address,
booking information obtained upon Payne’s arrest, be publicized in the press. As noted above, to
plead a Section 1983 claim, a plaintiff is required to allege facts demonstrating that: (1) the
defendant violated the Constitution or federal law; and (2) that the defendant was acting under the
color of state law while doing so.103 Payne asserts that Devall violated Louisiana Revised Statute
§ 40:2532 when he publicized her booking information to the press.104 Payne does not point to any
federal law that Devall violated in publicizing her booking information. Construing her complaint
liberally, it appears that Payne alleges that publicizing her booking information generally violated
her right to privacy. However, Payne has not alleged the source of her privacy right or how the
publication of an arrestee’s photo and address after an arrest violated any such right. Thus, Payne
has failed to overcome Devall’s qualified immunity defense by showing a violation of her
constitutional rights. Moreover, Payne has not pointed to any clearly established federal law to
show that publication of an arrestee’s booking information violates an individual’s constitutional
rights. The Supreme Court has found that it is not a per se constitutional violation to publicize a
criminal investigation before trial.105 Accordingly, the Court finds that Devall is entitled to
qualified immunity on Payne’s claim under Section 1983 that Devall ordered that the booking
information obtained following Payne’s arrest be publicized to the press.

103

See Atteberry, 430 F.3d at 252–53.

104

Rec. Doc. 74 at 10.

105

See, e.g. Skilling v. United States, 561 U.S. 358, 384 (2010) (quoting Nebraska Press Assn. v. Stuart, 427
U.S. 539, 554 (1976)) (“But ‘pretrial publicity—even pervasive, adverse publicity—does not inevitably lead to an
unfair trial.’”).

16

2. Payne’s Section 1983 Conspiracy Claim against Devall
Devall argues that he is entitled to qualified immunity as to the Section 1983 conspiracy
claim against him.106 Payne argues that she has properly alleged a Section 1983 conspiracy claim
against Devall, because she has alleged that Devall conspired with Gemar, Clesi, and Herrmann to
illegally seize Payne’s medical information.107 “A conspiracy may be charged under Section 1983
as the legal mechanism through which to impose liability on all of the defendants without regard
to who committed the particular act, but a conspiracy claim is not actionable without an actual
violation of Section 1983.”108 A defendant is entitled to qualified immunity from a Section 1983
conspiracy claim if he is entitled to qualified immunity from the underlying Section 1983 claims.109
Accordingly, because the Court found supra that Devall is entitled to qualified immunity from the
underlying Section 1983 claims, Devall is entitled to qualified immunity from the Section 1983
conspiracy claim against him.
3.

Whether Payne has Stated a Claim under Louisiana Revised Statute § 40:2532

Initially, the Court notes that Devall does not argue that he is entitled to qualified immunity
under state law as to Payne’s state law claim under Louisiana Revised Statute § 40:2532. “In
evaluating a motion to dismiss a state claim on the grounds of qualified immunity, federal courts

106

Rec. Doc. 65-1 at 3–4.

107

Rec. Doc. 74 at 5.

108
Hale v. Townley, 45 F.3d 914, 920 (5th Cir. 1995) (internal citation and quotation omitted) (holding that
a Section 1983 claim is not actionable where all the defendant officers are entitled to qualified immunity as to the
underlying Section 1983 claims).
109

See Pfannstiel v. City of Marion, 918 F.2d 1178, 1187–88 (5th Cir. 1990), abrogated on other grounds,
Martin v. Thomas, 973 F.2d 449, 455 (5th Cir. 1992). See also Hill v. City of Seven Points, 31 F. App’x 835 (5th Cir.
2002).

17

must apply the state’s substantive law of qualified immunity.”110 Accordingly, because Devall has
not provided any briefing on Louisiana’s substantive law of qualified immunity, the Court will
address whether Payne has stated a claim under Louisiana state law.
Payne asserts that she has stated a claim against Devall for violating Louisiana Revised
Statute § 40:2532 by releasing Payne’s address and photograph.111 Payne contends that Louisiana
law prohibits releasing to the news media a law enforcement officer’s home address or
photograph.112 Devall contends that Louisiana Revised Statute § 40:2532 applies only where there
are internal investigations of law enforcement officers for disciplinary purposes.113 Devall asserts
that Louisiana Revised Statute § 40:2532 does not apply to criminal investigations.114 Moreover,
Devall notes that Article 228 of the Louisiana Code of Criminal Procedure mandates the release
of “booking information” gathered on all persons, making booking information a public record.115
Article 228(A) of the Louisiana Code of Criminal Procedure provides that “[i]t is the duty
of every peace officer making an arrest . . . promptly to conduct the person arrested to the nearest
jail or police station and cause him to be booked.” Pursuant to Article 228(B), “[a] person is booked
by an entry, in a book kept for that purpose, showing his name and address, a list of any property
taken from him, the date and time of booking . . . The book and booking information summaries
shall always be open for public inspection.” In Johnson v. City of Pineville, the Louisiana Third

110

Brown v. Miller, 519 F.3d 231, 239 (5th Cir. 2008).

111

Rec. Doc. 74 at 10.

112

Id. (citing La. Rev. Stat. § 40:2532).

113

Rec. Doc. 65-1 at 4.

114

Id.

115

Id.

18

Circuit held that booking information is a public record subject to disclosure under Louisiana’s
Public Record Act.116 Thus, an arrestee’s booking information is not protected from disclosure to
the public under Louisiana law.
However, Payne argues that Louisiana Revised Statute § 40:2532 should apply to preclude
Devall from releasing her booking information because she was a police officer at the time of her
arrest. That statute provides:
No person, agency, or department shall release to the news media, press or any
other public information agency, a law enforcement officer’s home address,
photograph, or any information that may be deemed otherwise confidential, without
the express written consent of the law enforcement officer, with respect to an
investigation of the law enforcement officer.117
While Louisiana Revised Statute § 40:2532 suggests that it applies to all investigations of
law enforcement officers, reading the statute as a whole shows that it applies to information
gathered during administrative investigations, not criminal investigations. Louisiana Revised
Statute § 40:2532 is contained in Chapter 25 of Title 40 of the Louisiana Revised Statutes. Chapter
25 is titled “Rights of Law Enforcement Officers While Under Investigation.” Louisiana Revised
Statute § 40:2531(A) provides that “[t]he provisions of this Chapter shall apply only to police
employees . . . who are under investigation with a view to possible disciplinary action, demotion,
or dismissal.” Thus, the statute appears to differentiate between criminal and administrative
investigations. Likewise, in O’Hern v. Dep't of Police, the Louisiana Supreme Court interpreted
Louisiana Revised Statute § 40:2531(B)(7), which provides procedures for conducting
administrative investigations of police officers but states that “[n]othing in this Paragraph shall

116

2008-1234 (La. App. 3 Cir. 4/8/9); 9 So. 3d 313, 316–17.

117

La. Rev. Stat. § 40:2532.

19

limit any investigation of alleged criminal activity.”118 The Louisiana Supreme Court stated that
“[t]he plain language of the statute suggests a criminal investigation is distinct from a civil
administrative investigation.”119 Therefore, O’Hern further supports the proposition that Louisiana
Revised Statute § 40:2532 applies only to administrative proceedings, not criminal proceedings.
Payne alleges that when she was arrested on April 29, 2014, Devall “specifically and
directly ordered that her photo and home address be publicized in the press.”120 Therefore, based
on Payne’s own allegations, it is clear that her address and photograph were released in relation to
the criminal investigation against her, not an administrative investigation such that Louisiana
Revised Statute § 40:2532 would protect against the release of her address and photograph.
Payne relies on City of Baton Rouge/Parish of East Baton Rouge v. Capital City Press,
L.L.C.121 There, a newspaper sought Internal Affairs Division (“IAD”) files of the Baton Rouge
Police Department.122 The Louisiana First Circuit determined that the IAD files were subject to
disclosure subject to certain redactions.123 Specifically, the court concluded that “photographs of
police officers . . . any home addresses, home telephone numbers, social security numbers, and
drivers’ license numbers . . . and any medical information” contained in the IAD files was properly
deemed confidential pursuant to Louisiana Revised Statute § 40:2532.124

118

13-1416 (La. 11/8/13); 131 So.3d 29, 31.

119

Id.

120

Rec. Doc. 1 at 6.

121

2007-1088, 2007-1089 (La. App. 1 Cir. 10/10/08); 4 So.3d 807.

122

Id.

123

Id. at 22.

124

Id.

20

Capital City Press, L.L.C. is distinguishable from the instant case because it involved
release of Internal Affairs Division files, i.e. files that were likely obtained in the course of
administrative investigations, not booking information obtained during an arrest in a criminal
investigation. As noted above, the Louisiana Supreme Court has determined that “a criminal
investigation is distinct from a civil administrative investigation.”125 Payne does not point to any
caselaw establishing that Louisiana Revised Statute § 40:2531(A) bars a police department from
releasing booking information of police officers arrested in connection with a criminal
investigation. Moreover, under Louisiana Code of Criminal Procedure Article 228(B) booking
information is a public record subject to disclosure under Louisiana’s Public Records Act.126
Accordingly, the Court concludes that Payne has failed to state a claim against Devall for violating
Louisiana Revised Statute § 40:2532 by releasing Payne’s address and photograph, i.e. booking
information obtained following her arrest.
4.

Whether Payne has Stated a Claim under the FMLA

As an initial matter, the Court notes that Devall does not argue that he is entitled to qualified
immunity on Payne’s FMLA claim. Moreover, the Fifth Circuit has held that a state actor is not
entitled to qualified immunity from suit in his individual capacity under the FMLA because the
employee has a clearly established statutory right to medical leave under the FMLA.127

125

O’Hern, 131 So.3d at 31.

126

Johnson, 9 So. 3d at 316–17. The Court notes that Payne’s Rule 7(a)(7) reply alleges that “the Hammond
Fire and Police Civil Service Board found that Chief Devall did violate city policy and the state public information
law. He has since been terminated from his position as Chief of Police.” Rec. Doc. 54 at 6. However, Payne does not
allege what city policy or state public information law the Hammond Fire and Police Civil Service Board found that
Devall violated. Even if the Hammond Fire and Police Service Board found that Devall violated Louisiana Revised
Statute § 40:2532, the Court would not be bound by that determination without additional information as to the claims
involved or the issues raised during the proceeding.
127

Bellow v. LeBlanc, 550 F. App’x 181, 184 (5th Cir. 2013).

21

Accordingly, the Court will address whether Payne has stated a claim under the FMLA.
Devall moves the Court to dismiss the FMLA claims against him on the ground that
Payne’s complaint alleges that she took sick leave from September 30, 2013 to April 16, 2014, a
period in excess of 12 weeks.128 Devall asserts that it was not an FMLA violation to place Payne
on administrative leave the day she returned from her FMLA leave because the 12 week period for
FMLA leave had expired and Payne was no longer protected under the FMLA.129 In his original
motion to dismiss, which is adopted by reference in his re-urged motion to dismiss, Devall also
argued that Payne had not alleged that Devall was her “employer” under the FMLA.130 In
opposition, Payne asserts that Devall acted as her employer when he placed her on administrative
leave. 131 She argues that Devall placed her on leave the day she returned to work, which she
contends shows a causal connection between her leave and his decision to retaliate against her.132
Under the FMLA, a covered employer must “allow an eligible employee up to twelve
weeks of unpaid leave if the employee suffers from ‘a serious health condition that makes the
employee unable to perform the functions of the position of such employee.’”133 When an eligible
employee returns from FMLA leave, the employer must restore the employee to the same position
he or she previously held or to “an equivalent position with equivalent employment benefits, pay,

128

Rec. Doc. 65-1 at 5.

129

Id. at 5–6.

130

Rec. Doc. 47-1 at 9.

131

Rec. Doc. 74 at 12.

132

Id.

133

Caldwell v. KHOU-TV, No. 16-20408, 2017 WL 892439, at *5 (5th Cir. Mar. 6, 2017) (quoting Hunt v.
Rapides Healthcare Sys., LLC, 277 F.3d 757, 763 (5th Cir. 2001) (quoting 29 U.S.C. § 2612(a)(1)(D)), abrogated on
other grounds by Wheat v. Fla. Par. Juvenile Justice Comm'n, 811 F.3d 702 (5th Cir. 2016)).

22

and other terms and conditions of employment.”134 To protect an employee’s right to take leave,
the FMLA prohibits employers from “interfer[ing] with, restrain[ing], or deny[ing] the exercise of
or the attempt to exercise, any right” provided by the Act.135 Accordingly, the FMLA contains two
distinct provisions. The first provision “creates substantive rights, such as the right of the employee
to be restored to the same or equivalent position she held when her leave commenced. The second
provision protects employees from retaliation for exercising these rights.”136
Payne appears to allege that Devall interfered with her substantive rights under the FMLA
by failing to restore her to the same or equivalent position that she held when her leave
commenced, and that Devall retaliated against her for exercising her FMLA rights. Devall
contends that it was not an FMLA violation to place Payne on administrative leave the day she
returned from her FMLA leave because the 12 week period for FMLA leave had expired and Payne
was no longer protected under the FMLA.137 As noted above, under the FMLA, a covered
employer must “allow an eligible employee up to twelve weeks of unpaid leave if the employee
suffers from ‘a serious health condition. . . .’”138 “If an employee fails to return to work on or
before the date that FMLA leave expires, the right to reinstatement also expires.”139 If an employee

134

Hunt, 277 F.3d at 763 (citing 29 U.S.C. § 2614(a)(1)); Nero v. Indus. Molding Corp., 167 F.3d 921, 927
(5th Cir. 1999).
135

Caldwell, 2017 WL 892439, at *5 (citing 29 U.S.C. § 2615(a)(1)).

136
Silva v. City of Hidalgo, Tex., 575 F. App’x 419, 424 (5th Cir. 2014) (citing Mauder v. Metro. Transit
Auth. Of Harris Cnty., Tex. 446 F.3d 574, 580 (5th Cir. 2006)).
137

Rec. Doc. 65-1 at 5–6.

138

Caldwell, 2017 WL 892439, at *5 (quoting 29 U.S.C. § 2612(a)(1)(D)).

139

Hunt, 277 F.3d at 763.

23

does not attempt to return to work before her FMLA expired, an employer “is no longer under an
express statutory duty to reinstate her to her former position or to an equivalent position.”140
Payne alleges that she took sick leave from September 30, 2013 to April 16, 2014.141 Payne
alleges that her sick leave exceeded 12 weeks, but she does not allege what part of this period was
FMLA leave. Moreover, Payne does not allege whether she attempted to return to work before her
FMLA leave expired. Therefore, the Court concludes that Payne has failed to allege sufficient facts
to state a FMLA interference claim against Devall.
Payne also alleges that Devall retaliated against her for taking FMLA leave. To make a
prima facie showing of retaliation under the FMLA, an employee must show that: “(1) she was
protected under the FMLA; (2) she suffered an adverse employment decision; and either (3a) that
she was treated less favorably than an employee who had not requested leave under the FMLA; or
(3b) the adverse decision was made because she took FMLA leave.”142 The Fifth Circuit has noted
that a plaintiff need not establish a violation of the substantive, prescriptive provisions of the
FMLA to allege a retaliation claim because “[t]he FMLA’s against retaliation is not limited to
periods in which an employee is on FMLA leave, but encompasses the employer’s conduct both
during and after the employee’s FMLA leave.”143 Therefore, the fact that an employee exceeds her
12 weeks of FMLA leave before attempting to return to work does not preclude an FMLA

140

Id. at 764.

141

Rec. Doc. 1 at 4.

142

Hunt, 277 F.3d at 768.

143

Id. at 768–69.

24

retaliation claim.144 Accordingly, Payne would not be precluded from bringing an FMLA
retaliation claim if her FMLA leave exceeded 12 weeks.
However, to state a valid FMLA retaliation claim, Payne must also allege that Devall was
her employer for purposes of the FMLA.145 Pursuant to the Code of Federal Regulations regarding
the Family and Medical Leave Act, an employer is defined as follows:
[A]ny person engaged in commerce or in any industry or activity affecting
commerce, who employs 50 or more employees for each working day during each
of 20 or more calendar workweeks in the current or preceding calendar year.
Employers covered by FMLA also include any person acting, directly or indirectly,
in the interest of a covered employer to any of the employees of the employer, any
successor in interest of a covered employer, and any public agency.146
The Fifth Circuit has held that a public employee who “acts, directly or indirectly, in the
interest of an employer,” satisfies the definition of employer under the FMLA, and therefore, may
be subject to liability in his individual capacity.147 The Fifth Circuit has also frequently noted that
the definition of “employer” under the FMLA is “very similar” to the definition of “employer”
under the Fair Labor Standards Act (“FLSA”).148 Thus, the Fifth Circuit has determined that “[t]he
fact that Congress, in drafting the FMLA, chose to make the definition of ‘employer’ materially
identical to that in the FLSA means that decisions interpreting the FLSA offer the best guidance
for construing the term ‘employer’ as it is used in the FMLA.”149 Accordingly, pursuant to the

144

Id.

145

Modica v. Taylor, 465 F.3d 174, 183 (5th Cir. 2006).

146

29 C.F.R. § 825.104(a).

147

Modica, 465 F.3d at 184.

148

Id. at 186 (citing 29 U.S.C. § 203(d)).

149

Id. (quoting Wascura v. Carver, 169 F.3d 683, 686 (11th Cir. 1999)).

25

Fifth Circuit’s instructions, this Court will look to FLSA’s definition of “employer” as guidance
to determine whether Devall is an “employer” under the FMLA.
Similarly to the FMLA, the FLSA defines an “employer” as “any person acting directly or
indirectly in the interest of an employer in relation to an employee.”150 The Fifth Circuit has held
that FLSA’s definition of employer is “sufficiently broad to encompass an individual who, though
lacking a possessory interest in the ‘employer’ corporation, effectively dominates its
administration or otherwise acts, or has the power to act, on behalf of the corporation vis-a-vis its
employees.”151 Moreover, to determine if an individual is an employer under the FLSA, the Fifth
Circuit has stated that courts should consider “whether the alleged employer (1) has the power to
hire and fire the employees, (2) supervised and controlled employee work schedules or conditions
of employment, (3) determined the rate and method of payment, and (4) maintained employment
records.”152
In the original complaint, Payne alleges that from “September 30, 2013 to April 16, 2014,
she exercised her sick leave rights,” and on April 16, 2014, Devall placed her on administrative
leave.153 In the amended complaint, Payne alleges that “the Hammond Police Department and the
City of Hammond were, at all pertinent times, the employers of certain of the named defendants
herein, and vested with the hiring, training and supervision of their employees.”154 Payne also

150

Id.; see 29 U.S.C. § 203(d).

151
Reich v. Circle C. Investments, Inc., 998 F.2d 324, 329 (5th Cir. 1993) (quoting Donovan v. Sabine
Irrigation Co., 695 F.2d 190, 196 (5th Cir. 1983)); see also Donovan v. Grim Hotel Co., 747 F.2d 966, 972 (5th Cir.
1984).
152

Watson v. Graves, 909 F.2d 1549, 1553 (5th Cir. 1990) (internal citations omitted).

153

Rec. Doc. 1 at 4, 6.

154

Rec. Doc. 3 at 2.

26

alleges that “Defendants have violated . . . the Family and Medical Leave Act of 1993, 29 U.S.C.
§2601, et seq, Louisiana state law and City of Hammond General Orders by retaliating against
Plaintiff, invading her privacy, falsely arresting her, publicizing her photo and address and placing
her on administrative leave.”155 In the Rule 7(a)(7) reply, Payne alleges that in October 2013,
because she requested sick leave under the FMLA, she was required to meet with the City of
Hammond’s director of personnel, Loretta Severan, and the City of Hammond’s director of
administration, Pete Panepinto, at Hammond City Hall.”156 Payne further alleges that she was
placed on administrative leave the day she returned from her FMLA leave, and that Devall’s
actions violated her right to FMLA leave.157
Payne asserts that Devall is liable under the FMLA as her employer because he placed her
on administrative leave.158 As stated supra, the Fifth Circuit, in interpreting FLSA’s substantially
similar definition of “employer,” has determined that a person can be an “employer” when he or
she “effectively dominates [the employer corporation’s] administration” or “has the power to act[]
on behalf of the corporation vis-à-vis its employees.”159 Here, Payne has failed to plausibly allege
that Devall “effectively dominates” the Hammond Police Department’s administration or
otherwise has “the power to act” on behalf of the Hammond Police Department to its employees.160

155

Id. at 3.

156

Rec. Doc. 54 at 2.

157

Id. at 3, 6.

158

Rec. Doc. 74 at 12.

159

Reich, 998 F.2d at 329.

160

Id.

27

Additionally, as stated supra, the Fifth Circuit has instructed that courts should consider
whether the alleged employers have “the power to hire and fire the employees,” supervise or
control the employee’s “work schedules or conditions of employment,” determine the “rate and
method of payment,” and maintain employment records.161 Likewise, the Supreme Court has
interpreted FLSA’s “employer” definition to include persons with “managerial responsibilities”
and “substantial control of the terms and conditions of the [employer's] work.”162 However,
Payne’s complaint, her amended complaint, and her Rule 7(a)(7) reply fail to allege that any of
these factors are met, as Payne’s only allegation is that Devall placed her on administrative leave
the day she returned from FMLA leave.163 It is unclear if Devall had the authority to make the
ultimate decision to deny Plaintiff’s rights under the FMLA. Moreover, Payne has not alleged that
Devall had sufficient managerial responsibilities or control over Payne’s employment at the
Hammond Police Department, rate of pay, or employment records such that he could be considered
an “employer” under the FMLA. Therefore, the Court concludes that Payne has failed to allege
sufficient facts to state a FMLA retaliation claim against Devall.
5.

Amendment to Pleadings

Dismissal is a harsh remedy, and the Court is cognizant of the Fifth Circuit’s instruction
that a motion to dismiss under Rule 12(b)(6) “is viewed with disfavor and is rarely granted.”164
Short of granting a motion to dismiss, a court may grant a plaintiff leave to amend his complaint.165

161

Watson v. Graves, 909 F.2d 1549, 1553 (5th Cir. 1990) (internal citations omitted)

162

Donovan v. Grim Hotel Co., 747 F.2d 966, 971–72 (5th Cir. 1984).

163

Rec. Doc. 1 at 6; Rec. Doc. 54 at 3.

164

Beanal v. Freeport-McMoran, Inc, 197 F.3d 161, 164 (5th Cir. 1999).

165

See Carroll v. Fort James Corp., 470 F.3d 1171, 1175 (5th Cir. 2006) (“This standard ‘evinces a bias in
favor of granting leave to amend. The policy of the Federal Rules is to permit liberal amendment.’”) (quoting Dussouy

28

“In deciding whether to grant leave to amend, the district court may consider a variety of factors
in exercising its discretion, including undue delay, bad faith or dilatory motive on the part of the
movant, repeated failures to cure deficiencies by amendments previously allowed, undue prejudice
to the opposing party by virtue of allowance of the amendment, and futility of the amendment.”166
Here, Payne does not explain how amendment could cure the deficiencies in her FMLA claims.
Nevertheless, the Court, in its discretion, will grant Payne leave to amend her FMLA claims by
April 19, 2017, if she can show that amendment will address the issues identified by the Court. If
Payne is unable to do so by the Court’s deadline, the Court will dismiss these claims. However,
the Court will not allow Payne to amend her complaint regarding her claim under Louisiana
Revised Statute § 40:2532 as amendment would be futile. The Court also will not allow Payne to
amend her Section 1983 claims against Devall because it has already granted Payne leave to file a
Rule 7(a)(7) reply, and further amendment would be futile as the Court has concluded that Devall
is entitled to qualified immunity on the Section 1983 claims.
Moreover, the Court notes that in her opposition to Devall’s motion Payne, for the first
time, contends that Devall is liable under Louisiana Revised Statute § 33:2214(B)(1). Louisiana
Revised Statute § 33:2214(B)(1) provides that “[e]ach employee of the police departments of the
municipalities covered by this Subpart . . . shall be entitled to and given with full pay a sick leave
aggregating not less than fifty-two weeks during any calendar year when the conditions actually
warrant.” In her first amended complaint, Payne alleges that the defendants violated “Louisiana
state law . . . retaliating against Plaintiff, invading her privacy, falsely arresting her, publicizing

v. Gulf Coast Inv. Corp., 660 F.2d 594, 597–98 (5th Cir. 1981)).
166

See Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 567 (5th Cir. 2003).

29

her photo and address and placing her on administrative leave.”167 Nowhere in her complaint does
Payne allege a violation of Louisiana Revised Statute § 33:2214(B)(1). A new claim cannot be
raised in opposition to a motion to dismiss. However, the Fifth Circuit has held that “[g]enerally,
a new claim or legal theory raised in response to a dispositive motion should be construed as a
request for leave to amend the complaint, and the district court should determine whether leave
should be granted.”168 Payne presents no argument as to why she should be allowed leave to amend
her complaint to allege a claim under Louisiana Revised Statute § 33:2214(B)(1). However,
because the Court has granted Payne leave to amend her FMLA claim, the Court will also grant
Payne leave to amend her complaint to allege a claim under Louisiana Revised Statute
§ 33:2214(B)(1).
IV. Conclusion
For the reasons stated above, Devall is entitled to qualified immunity on Payne’s Section
1983 claims. Payne has failed to state a claim against Devall under Louisiana Revised Statute
§ 40:2532. The Court also concludes that Payne has failed to state a claim pursuant to the FMLA
against Devall. Therefore, the Court is inclined to grant the motion to dismiss as to this claim.
However, the Court will deny the motion without prejudice as to this claim and allow Payne until
April 19, 2017, to amend her complaint to cure the deficiencies noted, if possible.

167

Rec. Doc. 3 at 3.

168
Pierce v. Hearne Ind. Sch. Dist., 600 F. App’x 194, 200 (5th Cir. 2015) (citing Stover v. Hattiesburg Pub.
Sch. Dist., 549 F.3d 985, 989 n. 2 (5th Cir. 2008)).

30

IT IS HEREBY ORDERED that Defendant Roddy Devall’s “Reurged Motion to
Dismiss”169 is GRANTED IN PART AND DENIED IN PART. The motion is GRANTED to
the extent it seeks dismissal of Payne’s Section 1983 claim and her conspiracy claim. The motion
is DENIED WITHOUT PREJUDICE to the extent it seeks dismissal of Payne’s FMLA claim
and Louisiana Revised Statute § 33:2214(B)(1) claim.
IT IS FURTHER ORDERED that Payne is granted leave to amend her complaint by
April 19, 2017. If Payne is unable to cure the deficiencies in the complaint by that time, upon
motion by a party, the Court will dismiss Payne’s claims pursuant to the FMLA and Louisiana
Revised Statute § 33:2214(B)(1) against Devall.
NEW ORLEANS, LOUISIANA, this 29th day of March, 2017.
____

_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

169

Rec. Doc. 65.

31