Bennett v. Serpas et al

Filing 75

ORDER Granting in part and Denying in part 58 Motion for Judgment on the Pleadings. Signed by Judge Jay C. Zainey on 6/26/2017. (ajn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ARMOND BENNETT

CIVIL DOCKET

VERSUS

NUMBER: 15-3087

RONAL SERPAS, et al.

SECTION: A (3)
ORDER

Before the Court is a Motion for Judgment on the Pleadings (Rec. Doc. 58) filed by
Defendants Ronal Serpas, Michael Harrison, and the City of New Orleans. Plaintiff opposes the
Motion (Rec. Doc. 61). The Motion, set for submission on May 3, 2017, is before the Court on the
briefs without oral argument.
I.

Background
This lawsuit arises out of an alleged false arrest, detention, imprisonment, and malicious

prosecution of Plaintiff by Defendant Officers Lisa Lewis, Patrick Guidry, and Lucretia Gantner.
Plaintiff also alleges that he was the victim of excessive force by Officers Lisa Lewis and Patrick
Guidry, violating Plaintiff’s constitutional rights. This matter involved a traffic stop, and an
interaction ten days later between Plaintiff and Defendant Officers which ultimately led to Officer
Lewis firing her gun twice at Plaintiff, shooting him once in the head. (Rec. Doc. 1).
In addition to Plaintiff’s allegations against Defendant Officers, Plaintiff alleges that
Defendants Ronal Serpas, former superintendent of the New Orleans Police Department, Michael
Harrison, current superintendent of the New Orleans Police Department, and the City of New
Orleans 1) failed to adequately screen, hire, train, supervise, and/or discipline their employee
Officers, and 2) are liable under state tort law. Plaintiff further alleges municipal liability against
the City of New Orleans. Defendants Ronal Serpas, Michael Harrison, and the City of New Orleans
now seek dismissal of Plaintiff’s claims 1) against Ronal Serpas and Michael Harrison, in their
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individual capacity, 2) against Ronal Serpas and Michael Harrison, in their official capacity, and
3) against the City of New Orleans under 42 U.S.C.A. § 1983. (Rec. Doc. 58-2). Additionally,
should the Court dismiss Plaintiff’s Federal claims against Serpas, Harrison, and the City of New
Orleans, Defendants argue that the Court should decline to exercise supplemental jurisdiction over
Plaintiff’s state law claims.
II.

Analysis
A motion for judgment on the pleadings is subject to the same standard as a motion to

dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Doe v. MySpace, Inc., 528
F.3d 413, 418 (5th Cir. 2008). When considering a motion to dismiss under Rule 12(b)(6), a court
must accept as true all well-pleaded facts and must draw all reasonable inferences from those
allegations in the plaintiff’s favor. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). To survive a
Rule 12(b)(6) motion to dismiss, the plaintiff must plead “enough facts to state a claim to relief
that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 546 (2007). “Factual
allegations must be enough to raise a right to relief above the speculative level on the assumption
that all allegations in the complaint are true (even if doubtful in fact).” Id. at 555.
Plaintiff concedes that his claims against Ronal Serpas and Michael Harrison in their
individual capacity should be dismissed. Plaintiff also concedes that his claims against Michael
Harrison in his official capacity should be dismissed. Finally, Plaintiff concedes that all of his §
1983 claims, aside from his claim for Failure to Supervise/Train, should be dismissed. Plaintiff
only maintains his claims against the City of New Orleans for municipal liability and for state-law
claims, and against the City of New Orleans and Ronal Serpas, in his official capacity, for Failure
to Train/Supervise. (Rec. Doc. 61). Therefore, the Court grants Defendants’ Motion for Judgment
on the Pleadings on Plaintiff’s claims against Ronal Serpas and Michael Harrison in their

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individual capacities, against Michael Harrison in his official capacity, and against Ronal Serpas
and the City of New Orleans for Failure to Screen, Hire, and Discipline. The Court will only
address Plaintiff’s claims against the City of New Orleans and Ronal Serpas, in his official
capacity, for Failure to Train/Supervise, and against the City of New Orleans for municipal liability
and on state-law grounds.
a. Municipal Liability
Municipalities and other bodies of local government are considered “persons” who may be
sued directly under § 1983. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978). However, “a
municipality cannot be held vicariously liable for the constitutional torts of its employees or
agents.” Gros v. City of Grand Prairie, 181 F.3d 613, 615 (5th Cir. 1999). Therefore, “a
municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell, 436
U.S. at 691. Accordingly, municipal liability must be based on a municipal “policy” or “custom”
that caused the plaintiff's injury. Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997). A claim
for municipal liability under § 1983 requires proof of three elements: “(1) an official policy (or
custom), of which (2) a policymaker can be charged with actual or constructive knowledge, and
(3) a constitutional violation whose ‘moving force’ is that policy or custom.” Id. (quoting Pineda
v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002)).
For purposes of § 1983 liability, an official policy is a “policy statement, ordinance,
regulation or decision that is officially adopted and promulgated by the municipality’s lawmaking
officers or by an official to whom the lawmakers have delegated policy-making authority.” Brown
v. Bryan Cty., 219 F.3d 450, 457 (5th Cir. 2000). An official policy may alternatively be “[a]
persistent, widespread practice of city officials or employees, which, although not authorized by
officially adopted and promulgated policy, is so common and well settled as to constitute a custom

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that fairly represents municipal policy.” Id. (quoting Bennett v. City of Slidell, 735 F.2d 861, 862
(5th Cir. 1984)).
To establish municipality liability, Plaintiff cites a Quarterly Monitoring Report created
pursuant to a Consent Decree that is suggestive of “both excessive use of force and failure to
properly report uses of force,” arguing that this widespread practice by Defendants constitutes a
custom. (Rec. Docs. 1). In opposition, Defendants argue that in this Circuit, a report alone is not
sufficient to establish a pattern of repeated conduct. (Rec. Doc. 67). Indeed, the United States Court
of Appeals recently stated that it was persuaded by a district court’s finding that a “report, by itself,
cannot establish a pattern of repeated conduct.” Jordan v. Brumfield, 2017 WL 1487233, at *6 (5th
Cir. 2017). However, Plaintiff does not only cite the Quarterly Monitoring Report to establish a
policy or custom. Plaintiff, in his second amended complaint 1, also details numerous specific
complaints that have been made against each Defendant Officer. (Rec. Doc. 71).
To demonstrate a custom or policy for the first element of municipal liability, prior
instances must establish “notice of a pattern of similar violations.” Barrios-Barrios v. Clipps, 825
F. Supp.2d 730, 751 (E.D. La. 2011) (quoting Davis v. City of North Richland Hills, 406 F.3d 375,
383 (5th Cir. 2005)). The history of violations committed by Defendant Officers included
numerous violations for use of force, the same violation that Plaintiff alleges. Thus, the history of
violations coupled with the Quarterly Monitoring Report establish notice of a pattern of similar
violations that give rise to a custom or policy. The City of New Orleans presumably had
constructive knowledge of the Quarterly Monitoring Report and violation history of Defendant
officers, as these were in its possession, satisfying the second element. Finally, the Quarterly
Monitoring Report and history of violations by Defendant Officers establish that the custom of

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The Court notes that Plaintiff’s Second Amended Complaint was filed after Defendants’ Motion to Dismiss.

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excessive force and constitutional violations is the driving force of the Defendant Officers’ alleged
constitutional violation against Plaintiff. Therefore, Plaintiff has adequately established a custom
of constitutional violations to defeat dismissal of his municipal liability claim by way of a
judgment on the pleadings.
b. Failure to Train/Supervise
As Plaintiff concedes, his claim against the City and against Serpas for Failure to
Train/Supervise are essentially the same claim because a lawsuit against a government officer “in
his official capacity” is no different from a suit against the government entity of which he is an
agent. Burge v. Parish of St. Tammany (Burge I), 187 F.3d 452, 468 (5th Cir. 1999). Therefore,
Plaintiff’s claims against Serpas, in his official capacity, and against the City of New Orleans will
be analyzed as one.
The standard applicable to a failure-to-train claim, which Plaintiff brings against Serpas
and the City of New Orleans, is the same as the standard for municipal liability. Roberts v. City of
Shreveport, 397 F.3d 287, 293 (5th Cir.2005). Liability for Monell Failure to Train/Supervise
requires plaintiffs to demonstrate that “1) the supervisor either failed to supervise or train the
subordinate official, 2) a causal link exists between the failure to train or supervise and the
violation of the plaintiff’s rights, and 3) the failure to train or supervise amounts to deliberate
indifference.” Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011). In order to establish a deliberate
indifference, plaintiffs “usually must demonstrate a pattern of violations and that the inadequacy
of the training is obvious and likely to result in a constitutional violation.” Goodman v. Harris
County, 571 F.3d 388, 395 (5th Cir. 2009) (quoting Cousin v. Small, 325 F.3d 627, 637 (5th Cir.
2003)).

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Defendants assert that Plaintiff has failed to make a claim because Plaintiff’s Amended
Complaint gives conclusory statements and “is devoid of any factual allegations concerning the
training or discipline NOPD officers received or should have received.” (Rec. Doc. 67).
Defendants further allege that Plaintiff’s Amended Complaint fails to detail how the City of New
Orleans acted with deliberate indifference. However, Plaintiff does not merely assert conclusory
statements because the Quarterly Monitoring Report details the deficiencies in the training and
supervising of NOPD officers. Additionally, Plaintiff’s Second Amended Complaint outlines the
complaint history of the individual officers in order to show a pattern of violations to prove
deliberate indifference. Defendants nevertheless maintain that Plaintiff’s new allegations fail to
demonstrate the failure to supervise/train, and causation by the supervisor.
The Court finds that Plaintiff has properly made a claim for failure to train/supervise
against Serpas and the City of New Orleans such that issuing a judgment on the pleadings at this
juncture is not appropriate. First, Plaintiff cites to the Consent Report which found deficiencies
that “lead to constitutional violations span[ning] the operation of the entire Department from how
officers are recruited, trained [and] supervised…,” establishing a failure to train and supervise
officers. (Rec. Doc. 71). Second, Plaintiff cites a detailed history of complaints made against each
Defendant Officer. This history shows a pattern of violations identical to Defendant Officers’
alleged violation against Plaintiff, and establishes that the inadequate policy was the moving force
behind Defendant Officers’ alleged violation of Plaintiff’s civil rights.
Finally, Plaintiff has sufficiently alleged a deliberate indifference by Serpas and the City
of New Orleans because he has sufficiently shown a pattern of violations and that the inadequacy
of the training is obvious and likely to result in a constitutional violation. The Consent Report that
Plaintiff cites states that “officers too frequently use excessive force and conducted illegal stops,

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searches and arrests with impunity,” and that NOPD’s failure to train its officers directly
contributes to the pattern of constitutional violations. (Rec. Doc. 71). This Consent Report coupled
with the Defendant Officers’ history of use of excessive force establishes a deliberate indifference.
Therefore, Plaintiff has made a claim for failure to train/supervise against Defendants Serpas and
the City of New Orleans sufficient to defeat Defendants’ Motion for Judgment on the Pleadings.
c. State-Law Claims
Defendants assert that the Court should decline to exercise supplemental jurisdiction over
Plaintiff’s remaining state law claims, should the Court dismiss Plaintiff’s Federal claims against
Defendants. Plaintiff dismisses his state law claims against Ronal Serpas and Michael Harrison,
only maintaining his state law claims against the City of New Orleans. Having found that dismissal
of Plaintiff’s Federal claims against Serpas and the City of New Orleans for Failure to
Train/Supervise, and against the City for municipal liability, is not appropriate at this time, the
Court will maintain its supplemental jurisdiction over Plaintiff’s state law claims against the City
of New Orleans.
Accordingly;
IT IS ORDERED that the Motion for Judgment on the Pleadings (Rec. Doc. 58) filed
by Defendants Ronal Serpas, Michael Harrison, and the City of New Orleans is GRANTED IN
PART and DENIED IN PART. The Motion is granted to the extent that it dismisses all claims
against Michael Harrison; all claims against Ronal Serpas in his individual capacity, claims against
Ronal Serpas under state tort law, claims against Ronal Serpas in his official capacity for Failure
to Screen, Hire, and Discipline; and claims against the City of New Orleans for Failure to Screen,
Hire, and Discipline. The Motion is denied to the extent that it relates to Plaintiff’s claims against

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Ronal Serpas, in his official capacity, for Failure to Train/Supervise; and Plaintiff’s claims against
the City of New Orleans for Failure to Train/Supervise, Municipal Liability, and state law liability.
New Orleans, Louisiana this 26th day of June, 2017.

____________________________________
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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