Cain et al v. New Orleans City et al

Filing 126

ORDER granting 58 Motion to Dismiss for Failure to State a Claim. Party New Orleans City dismissed. Signed by Judge Sarah S. Vance on 5/13/2016. (mmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ALANA CAIN, ET AL.

CIVIL ACTION

VERSUS

NO. 15-4479

CITY OF NEW ORLEANS, ET AL.

SECTION: R(2)

ORDER AND REASONS
Named plaintiffs Alana Cain, Ashton Brown, Reynaud Variste,
Reynajia Variste, Thaddeus Long, and Vanessa Maxwell filed this civil rights
action under 42 U.S.C. § 1983 seeking to declare the manner in which the
Orleans Parish Criminal District Court collects post-judgment court costs
from indigent debtors unconstitutional. According to plaintiffs, the Criminal
District Court and other, related actors maintain a policy of jailing criminal
defendants who fail to pay their court costs solely because of their indigence.1
The City of New Orleans now asks the Court to dismiss plaintiffs’
claims against it under Federal Rule of Civil Procedure 12(b)(6).2 The City
argues that plaintiffs lodge general allegations against all “defendants” and
state only legal conclusions. Because plaintiffs have not plausibly stated a

See generally R. Doc. 7 (Plaintiffs’ First Amended Class Action
Complaint).

1

2

R. Doc. 58.

Monell claim against the City or a false arrest claim under Louisiana law, the
Court grants the motion.

I.

BACKGROUND
A.

Factual Allegations

In this section 1983 civil rights lawsuit, plaintiffs allege, on behalf of
themselves and those similarly situated, that the City of New Orleans, the
Orleans Parish Criminal District Court, its judges and judicial administrator,
and Orleans Parish Sheriff Marlin Gusman maintain an unconstitutional
scheme of jailing indigent criminal defendants and imposing excessive bail
amounts for nonpayment “offenses” in an effort to collect unpaid court
courts. According to plaintiffs, the Criminal District Court maintains an
internal “Collections Department,” informally called the “fines and fees”
department, that oversees the collection of court debts from former criminal
defendants. The “typical” case allegedly proceeds as follows.
When a person is charged with a crime, the Criminal District Court
judges first determine whether the criminal defendant is legally “indigent,”
which means they qualify for appointment of counsel through the Orleans
Public Defenders under Louisiana Revised Statutes § 15:175. According to
plaintiffs, eight-five percent of the criminal defendants in Orleans Parish are

legally indigent.3 With assistance of counsel, the defendants either plead
guilty to their criminal charges or proceed to trial. If convicted, the criminal
defendants must appear before a judge at the Criminal District Court for
sentencing.
At sentencing, in addition to imposing a term of imprisonment or
probation, the court may assess against the criminal defendants various
“court costs.” These costs may include restitution to any victim, a statutory
fine, fees, or other costs imposed at the judge’s discretion. According to
plaintiffs, the discretionary assessments “fund the District Attorney’s office,
the Public Defender, and the Court[,]” which rely on these collections “to
fund their operations and to pay employee salaries and extra benefits.”4
Plaintiffs allege that the Criminal District Court judges impose court costs
without inquiring into the criminal defendants’ ability to pay.5
If the criminal defendants cannot immediately pay in full, the Criminal
District Court judges allegedly direct them to the Collections Department, or
“fines and fees.”

There, a Collections Department employee allegedly

imposes, at his discretion and without inquiring into a defendant’s ability to
3

R. Doc. 7 at 5.

4

Id. at 22-23 ¶ 88.

5

Id. at 23 ¶ 91.

pay, a payment schedule—usually requiring a certain amount per month. 6
Collections Department employees also allegedly warn the defendants that
failure to pay the monthly amount, in full, will result in their arrests.
Plaintiffs contend that Collections Department employees allegedly refuse to
accept anything less than full payment. 7
When criminal defendants fail to pay, a Collections Department
employee allegedly issues a pre-printed warrant for the defendant’s arrest by
forging a judge’s name.8 According to plaintiffs’ allegations, the Collections
Department often issues these warrants “years after a purported
nonpayment,” and the warrants are “routinely issued in error” or without
regard to a debtor’s indigence.9
Plaintiffs also allege that each Collections Department arrest warrant
is “accompanied by a preset $20,000 secured money bond required for
release.”10 According to plaintiffs, defendants’ adherence to this “automatic
$20,000 secured money bond” requirement results from defendants’

6

Id. at 27-28 ¶103.

7

Id. at 28 ¶ 106.

8

Id. at 29 ¶ 109.

9

Id. at ¶ 110.

10

Id. at ¶ 113.

financial interest in state-court arrestees’ paying for their release.11 Plaintiffs
contend that the Criminal District Court judges collect 1.8% of each bond,
while the Orleans Parish District Attorney’s office, the Orleans Public
Defenders’ office, and the Orleans Parish Sheriff each collect 0.4% of each
bond.12
Plaintiffs allege that when criminal defendants are arrested for
nonpayment, they are “routinely told” that to be released from prison, they
must pay for the $20,000 secured money bond, the entirety of their
outstanding court debts, or some other amount “unilaterally determine[d]”
by the Collections Department. 13 As a result, these indigent debtors allegedly
“languish” in prison “indefinite[ly]” because they cannot afford to pay any of
the foregoing amounts. 14 Although “arrestees are eventually brought to
court,” plaintiffs allege that defendants “have no set policy or practice”
regarding how long arrestees must await a hearing. According to plaintiffs,
indigent debtors “routinely” spend a week or more in prison.15 Plaintiffs

11

Id. at 21-22 ¶88.

12

Id. at 22 ¶88.

13

Id. at 30 ¶114.

14

Id. at ¶115.

15

Id.

allege that some arrestees, with help from family and friends, pay for their
release without ever having a hearing and thus have “no opportunity to
contest the debt or the jailing.”16
When criminal defendants are brought to court, the Criminal District
Court judges allegedly send them back to prison if they are unable to pay
their debts or release them “on threat of future arrest and incarceration” if
they do not promptly pay the Collections Department.17 At these brief
“failure-to-pay hearings,” the judges allegedly do not consider the debtors’
abilities to pay. 18
Plaintiffs contend that these practices are unconstitutional under the
Fourth and Fourteenth Amendments.
B.

Parties

The named plaintiffs in the First Amended Complaint are six
individuals who were defendants in the Orleans Parish Criminal District
Court—Alana Cain, Ashton Brown, Reynaud Variste, Reynajia Variste,
Thaddeus Long, and Vanessa Maxwell. 19
16

Id. at ¶114.

17

Id. at ¶116.

18

Id.

19

Id. at 7 ¶7.

The Criminal District Court appointed counsel from the Orleans Public
Defenders to represent each of the named plaintiffs, except Reynaud Variste,
during their criminal proceedings. 20 Thus, the court must have determined
that Cain, Brown, Reynajia Variste, Long, and Maxwell were legally indigent
under Louisiana Revised Statutes §15:175. 21 Reynaud Variste appears to
have retained private counsel. 22
With the assistance of counsel, all of the named plaintiffs pleaded
guilty to their respective criminal charges, which include theft, 23 battery, 24

R. Doc. 59-3 at 1 (Alana Cain Docket Sheet, entry for 12/04/2012)
(“Court appointed Alex Liu, OPD.”), 5 (Ashton Brown Docket Sheet, entry for
10/02/2013) (“Court appointed Seth Wayne, OPD.”), 9 (Reynajia Variste
Docket Sheet, entry for 10/02/2014) (“Court appointed Lindsey Samuel,
OPD.”) 23 (Vanessa Maxwell Docket Sheet, entry for 12/14/2011) (“Court
appointed Jerrod Thompson-Hicks, OIPD.”); R. Doc.95-7 at 1 (Thaddeus
Long Docket Sheet, entry for 06/02/2011) (“Court appointed Anna Fecker,
OIDP).

20

21

See R. Doc. 7 at 5.

R. Doc. 59-3 at 14 (Reynaud Variste Docket Sheet, entry for 9/25/2012)
(“Defendant must retain private counsel.”).
22

23

Id. at 4 (Alana Cain Guilty Plea), 8 (Ashton Brown Guilty Plea).

24

Id. at 12 (Reynajia Variste Guilty Plea).

drug possession,25 “simple criminal damage,”26 and disturbing the peace.27
At plaintiffs’ sentencings, the presiding judges imposed terms of
imprisonment, which were often suspended, as well as terms of active or
inactive probation. In addition, the judges assessed against plaintiffs various
court costs—whether restitution, fines, and/or discretionary fees and costs.28
At some point, all of the named plaintiffs were arrested for failing to pay
outstanding court costs on a warrant issued by the court’s Collections
Department.
Plaintiffs sue the City of New Orleans for hiring the Criminal District
Court’s Collection Department workers and the police officers who execute
the allegedly invalid arrest warrants. 29 Plaintiffs also sue Sheriff Marlin
Gusman, in his official capacity, for “unconstitutionally detain[ing]

25

Id. at 22 (Reynaud Variste Guilty Plea).

26

Id. at 28 (Vanessa Maxwell Guilty Plea).

27

R. Doc. 95-7 at 5 (Thaddeus Long Guilty Plea).

R. Doc. 59-3 at 2 (Alana Cain Docket Sheet, entry for 5/30/2013), 6
(Ashton Brown Docket Sheet, entry for 12/16/2013), 9 (Reynajia Variste
Docket Sheet, entry for 10/21/2014), 18 (Reynaud Variste Docket Sheet,
entry for 10/31/2013), 23 (Vanessa Maxwell Docket Sheet, entry for
3/06/2012); R. Doc. 95-7 at 1 (Thaddeus Long Docket Sheet, entry for
7/29/2011).
28

29

R. Doc. 7 at 7 ¶8.

impoverished people indefinitely because of their inability to . . . pay[] for
their release.”30 In addition, plaintiffs sue the Orleans Parish Criminal
District Court for its role in managing and funding the Collections
Department,31 and the court’s Judicial Administrator, Robert Kazik, in his
individual and official capacities, because he is allegedly responsible for
operating the Collections Department. 32

Finally, plaintiffs name as

defendants every judge at the Criminal District Court—thirteen in all—
because they allegedly supervise the Collections Department employees and
have failed to provide the parish’s criminal defendants with constitutionallyrequired process before imprisoning them for failure to pay court costs.
Plaintiffs sue the judges only for declaratory relief.33
C.

Plaintiffs’ Claims for Relief

Plaintiffs filed this civil rights action under 42 U.S.C. § 1983, alleging
violations of their Fourth and Fourteenth Amendment rights, as well as

30

Id. at 8 ¶12.

This Court dismissed the Criminal District Court as a defendant on
May 11, 2016. R. Doc. 123.
31

Id. at 7-8 ¶¶9-10. The Court also dismissed all claims against Kazik,
except plaintiffs’ claim against Kazik, in his individual capacity, for
declaratory relief. R. Doc. 123.
32

33

Id. at 8 ¶13.

violations of Louisiana tort law.

Plaintiffs seek damages (including

attorneys’ fees) and an injunction against all defendants, except the judges.
Plaintiffs also seek a declaratory judgment regarding the constitutionality of
defendants’ practices. 34
The Court summarizes plaintiffs’ claims as follows:
(1)

Defendants’ policy of issuing and executing arrest warrants for
nonpayment of court costs is unconstitutional under the Fourth
Amendment and the Due Process Clause of the Fourteenth
Amendment;

(2)

Defendants’ policy of requiring a $20,000 “fixed secured money
bond” for each Collections Department warrant (issued for
nonpayment of court costs) is unconstitutional under the Due
Process Clause and the Equal Protection Clause of the
Fourteenth Amendment;

(3)

Defendants’ policy of indefinitely jailing indigent debtors for
nonpayment of court costs without a judicial hearing is

Only Cain, Brown, Reynajia Variste, and Maxwell’s claims for equitable
relief remain. In an order addressing an earlier motion to dismiss, the Court
found that Reynaud Variste and Thaddeus Long lacked standing to pursue
prospective equitable relief and dismissed those claims. R. Doc. 109 at 1921.
34

unconstitutional under the Due Process Clause of the Fourteenth
Amendment;
(4)

Defendants’ “scheme of money bonds” to fund certain judicial
actors is unconstitutional under the Due Process Clause of the
Fourteenth Amendment. To the extent defendants argue this
scheme is in compliance with Louisiana Revised Statutes §§
13:1381.5 and 22:822, which govern the percentage of each
surety bond that the judicial actors receive, those statutes are
unconstitutional;

(5)

Defendants’ policy of jailing indigent debtors for nonpayment of
court costs without any inquiry into their ability to pay is
unconstitutional under the Due Process Clause and the Equal
Protection Clause of the Fourteenth Amendment;

(6)

Defendants’ policy of jailing and threatening to imprison
criminal defendants for nonpayment of court debts is
unconstitutional under the Equal Protection Clause of the
Fourteenth Amendment because it imposes unduly harsh and
punitive restrictions on debtors whose creditor is the State, as
compared to debtors who owe money to private creditors;

(7)

Defendants’ conduct constitutes wrongful arrest under Louisiana
law; and

(8)

Defendants’ conduct constitutes wrongful imprisonment under
Louisiana law.

II.

LEGAL STANDARD
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.” Ashcroft
v. Iqbal, 556 U.S. 662, 697 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim is facially plausible when the plaintiff pleads
facts that allow the court to “draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. at 678. A court must
accept all well-pleaded facts as true and must draw all reasonable inferences
in favor of the plaintiff. See Lormand v. US Unwired, Inc., 565 F.3d 228,
239 (5th Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
A legally sufficient complaint must establish more than a “sheer
possibility” that the plaintiff's claim is true. Iqbal, 556 U.S. at 678. It need
not contain detailed factual allegations, but it must go beyond labels, legal
conclusions, or formulaic recitations of the elements of a cause of action. Id.
In other words, the face of the complaint must contain enough factual matter

to raise a reasonable expectation that discovery will reveal evidence of each
element of the plaintiff's claim. Lormand, 565 F.3d at 257. If there are
insufficient factual allegations 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. Twombly, 550 U.S.
at 555.

III. DISCUSSION
With few exceptions, plaintiffs’ First Amended Complaint directs its
allegations not towards the City, or any other individual or entity, but
towards “defendants” as a group. Rather than identifying specific acts of
misconduct by specific defendants, the First Amended Complaint rests
largely on allegations of collective wrongdoing by all eighteen defendants.
For instance, plaintiffs allege that “[d]efendants have developed a policy,
pattern, and practice of advocating for and implementing high bonds, fines,
costs and fees without any constitutional basis and any meaningful inquiry
into a person's ability to pay, even when they know the person is indigent.”35
They further allege that “[d]efendants are aware of these open policies and

35

R. Doc. 7 at 22 ¶89.

practices and yet allow them to continue.”36 Similar allegations pervade the
First Amended Complaint.
This pleading structure—lumping all defendants together and
asserting identical allegations as to each, without distinction—largely
prevents the Court from discerning which defendants are allegedly
responsible for which allegedly unlawful actions. As the Seventh Circuit
recently noted, “liability is personal.” Bank of Am., N.A. v. Knight, 725 F.3d
815, 818 (7th Cir. 2013). Because the notice pleading requirement of the
Federal Rules of Civil Procedure entitle “each defendant . . . to know what he
or she did that is asserted to be wrongful,” allegations based on a “theory of
collective responsibility” cannot withstand a motion to dismiss.

Id.

(affirming dismissal of complaint alleging collectively responsibility as to all
defendants); see also Zola H. v. Snyder, No. 12-14073, 2013 WL 4718343, at
*7 (E.D. Mich. Sept. 3, 2013) (dismissing complaint that lumped defendants
together and failed “to impute concrete acts to specific litigants”); Petri v.
Kestrel Oil & Gas Properties, L.P., No. CIV.A. H-09-3994, 2011 WL 2181316,
at *7 (S.D. Tex. June 3, 2011) (“[T]he remaining claims against all
Defendants here are not adequately pleaded under . . . Twombly and Iqbal

36

Id. at 29 ¶ 111.

and their progeny. Defendants . . . are entitled to a more definite statement
to provide them with adequate notice of the claims against them, as well as
factual pleading distinguishing plausible claims against each Defendant
individually.”).
Accordingly, in evaluating the City’s motion to dismiss, the Court looks
only to well-pleaded facts concerning the City’s alleged misconduct. The
Court disregards bare assertions of collective responsibility, unsupported by
concrete factual allegations.

See Iqbal, 566 U.S. at 678 (“Nor does a

complaint suffice if it tenders naked assertion[s] devoid of further factual
enhancement.” (quoting Twombly, 550 U.S. at 557)).
The entirety of plaintiffs’ allegations against the City, rather than all
“defendants,” are as follows:
• The Orleans Parish Criminal District Court and the City of New Orleans
jointly fund the Collections Department as part of their efforts to
supplement the City and the Court budgets with the debts collected
from mostly indigent people.37
• Among other things, the City of New Orleans funds the hiring of the
Collections Department employees who openly and as a matter of
policy commit the violations at issue in this case. Moreover, the City of
New Orleans police officers execute the Collections Department
warrants even though the City knows or should know that the warrants

37

Id. at 6 ¶2.

are invalid and unconstitutional and that arrestees will be subjected to
the Defendants’ unconstitutional practices once in custody. 38
• In 2012, the Orleans Parish Criminal District Court judges objected to
the transfer of misdemeanor cases to the Municipal Court because it
meant that they would lose significant revenue. During one discussion
at a City Council meeting, the Chief Municipal Court Judge responded
to a discussion about this controversy: The judges should not be in the
business of . . . making money . . . . We’re here to . . . dispense justice .
. . . We’re not even supposed to be placed in that extremely conflicting
position, as to be concerned about how many fines and fees we take in
so that we can operate. You cannot place that burden on us any longer.
It’s unfair . . . and it goes against the pledge we take when we take
office.39
• The Court and the City have even agreed to fund extra positions in the
Collections in order to maximize additional revenues from more
people.40
In two footnotes, plaintiffs also allege:
• The Criminal District Court reported to the City Council in June 2015
that it was in the process of collaborating with the City of New Orleans
Police Department and the District Attorney to implement a more
efficient online warrant system.
• Despite the extra positions funded jointly by the Court and the City of
New Orleans, the Court complained to the City Council in June 2015
that a shortage of funding for the Collections Department had forced it
to float other employees to cover that and other areas of its
administration. It noted that budget cuts had left it with one vacant
position in the Collections Department. The Court made the same
complaints to the City Council in previous years, even though the City
38

Id. at 7 ¶8.

39

Id. at 26 ¶98.

40

Id. at 29 ¶111.

has agreed each year jointly to fund additional Collections Department
positions. 41
With these allegations in mind, the Court considers the sufficiency of
plaintiffs’ section 1983 and state-law claims against the City.
A.

Section 1983

As noted in plaintiffs’ complaint, the City of New Orleans is a municipal
government entity.42 To state a section 1983 claim against a municipal
entity, for both monetary and equitable relief, plaintiffs must satisfy the
requirements outlined in Monell. 43 See Los Angeles Cty. v. Humphries, 562
U.S. 29, 36-37 (2010) (“The language of § 1983 read in light of Monell . . .
explains why claims for prospective relief, like claims for money damages,
fall within the scope of the ‘policy or custom’ requirement.”). Under Monell,
plaintiffs must allege the existence of (1) an official policy or custom, of which
(2) a policymaker can be charged with actual or constructive knowledge, and

41

Id. at n.24 & n.26.

42

Id. at 7 ¶8.

In their opposition, plaintiffs assert that “the City does not appear to
dispute that it is a proper party for declaratory and injunctive relief.” R. Doc.
67 at 1. How plaintiffs arrive at this conclusion is unclear. In its motion to
dismiss, the City argues that plaintiffs have not plausibly alleged sufficient
facts to support a Monell claim, which is necessary to sustain a section 1983
action against a municipal entity. See R. Doc. 58-1. As noted, Monell applies
regardless of whether the plaintiff seeks monetary or equitable relief.
43

(3) a constitutional violation whose “moving force” is that policy or custom.
Valle v. City of Houston, 613 F.3d 536, 541-42 (5th Cir. 2010). These
elements are necessary “to distinguish individual violations perpetrated by
local government employees from those that can be fairly identified as
actions of the government itself.” Piotrowski v. City of Houston, 237 F.3d
567, 578 (5th Cir. 2001) (citations omitted). A municipal entity cannot be
held liable under section 1983 on a theory of respondeat superior merely
because it employs a tortfeasor. Monell, 436 U.S. at 694.
The “official policy or custom” may be “an actual policy, regulation or
decision that is officially adopted and promulgated by lawmakers or others
with policymaking authority.” Valle, 613 F.3d at 542. It may also be “a
persistent, widespread practice which, although not officially promulgated,
is so common and well settled as to constitute a custom that fairly represents
municipal policy.” Esteves v. Brock, 106 F.3d 674, 677 (citing Monell, 436
U.S. at 694). Importantly, however, “[a] plaintiff may not infer a policy
merely because harm resulted from some interaction with a governmental
entity.” Colle v. Brazos Cty., Tex., 981 F.2d 237, 245 (5th Cir. 1993); see also
Wetzel v. Penzato, Civ. Action No. 09–7211, 2009 WL 5125465, at *3 (E.D.
La. Dec. 23, 2009). Rather, the plaintiff must identify the policy or custom
which allegedly caused the deprivation of his constitutional rights. See, e.g.,

Murray v. Town of Mansura, 76 Fed. App'x 547, 549 (5th Cir. 2003); Treece
v. Louisiana, 74 Fed. App'x 315, 316 (5th Cir. 2003).
As to the second element, “[a]ctual or constructive knowledge of [a]
custom must be attributable to the governing body of the municipality or to
an official to whom that body has delegated policymaking authority.” Valle,
613 F.3d at 542 (quoting Webster v. City of Houston, 735 F.2d 838, 842 (5th
Cir. 1984) (en banc)). Finally, to satisfy the “moving force” element, “a
plaintiff must show that the municipal action was taken with the requisite
degree of culpability and must demonstrate a direct causal link between the
municipal action and the deprivation of federal rights.” Id. (quoting Bd. of
Cty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997)). In other words, “the
plaintiff must demonstrate that a municipal decision reflects deliberate
indifference to the risk that a violation of a particular constitutional or
statutory right will follow the decision.” Id. (quoting Brown, 520 U.S. at 411).
“Deliberate indifference,” often described as a “high standard” or a “stringent
test,” requires a municipal actor’s “disregard[ing] [the] known or obvious
consequence” that a constitutional violation would result from his actions.
Brown, 520 U.S. at 410; accord Valle, 613 F.3d at 542; Piotrowski v. City of
Houston, 237 F.3d 567, 579 (5th Cir. 2001).

Here, plaintiffs have not identified any policy or custom attributable to
the City of New Orleans that was the moving force behind the alleged Fourth
and Fourteenth Amendment violations. Most of plaintiffs’ allegations center
on the policies and alleged wrongdoing of entities other than the City. For
instance, plaintiffs challenge the alleged policies of failing to inquire into a
debtor’s ability to pay his court costs, 44 issuing arrest warrants for
nonpayment, 45 imposing an “$20,000 secured money bond,”46 and
“indefinitely” detaining indigent arrestees.47 Plaintiffs level these allegations
against “defendants” as a group, but none of the policies identified in the
complaint can be reasonably attributed to the City. See, e.g., La. Code Crim.
Proc. art. 202 (authorizing judges to issue arrest warrants); La. Code Crim.
Proc. art. 333 (authorizing judges to fix bail). Absent a plausible allegation
that the City exercises policymaking authority in these areas, these
allegations fail to state a section 1983 claim against the City. See City of St.
Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (“[T]he challenged action must
have been taken pursuant to a policy adopted by the official or officials
44

Id. at 22-23 ¶¶89, 91.

45

Id. at 21 ¶¶85, 88.

46

Id. at ¶88;

47

Id. at 15 ¶ 47.

responsible under state law for making policy in that area of the city's
business.”); Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)
(“[M]unicipal liability under § 1983 attaches where—and only where—a
deliberate choice to follow a course of action is made from among various
alternatives by the official or officials responsible for establishing final policy
with respect to the subject matter in question.” (emphasis added)).
In opposition, plaintiffs characterize the City’s “using police officers to
execute unconstitutional warrants” or “permitting its police officers to
execute” these warrants as an additional municipal policy for which the City
may be liable. 48 The only allegation as to the City on this point is a single
sentence in a forty-four-page complaint. Plaintiffs allege that “the City of
New Orleans police officers execute the Collections Department warrants
even though the City knows or should know that the warrants are invalid and

Plaintiffs’ opposition brief also includes other allegations, not present
in their complaint, regarding policies allegedly attributable to the City. “[I]t
is axiomatic that a complaint cannot be amended by briefs in opposition to a
motion to dismiss.” Becnel v. St. Charles Par. Sheriff’s Office, No. 15-1011,
2015 WL 5665060, at *1 (E.D. La. Sept. 24, 2015) (quoting In re Enron Corp.
Sec., Derivative & ERISA Litig., 761 F. Supp. 2d 504, 566 (S.D. Tex. 2011)
(collecting cases)). Because a Rule 12(b)(6) motion tasks the Court with
“assess[ing] the legal sufficiency of the complaint,” the Court does not
consider allegations that appear for the first time in plaintiffs’ briefing.
Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc.,
702 F.3d 794, 806 (5th Cir. 2012) (emphasis added).
48

unconstitutional and that arrestees will be subjected to the Defendants’
unconstitutional practices once in custody.”49 By plaintiffs own allegations,
these arrest warrants are issued from the Criminal District Court and bear
the signatures of the court judges. Other than referring to these warrants as
“illegal,” “invalid,” or “unconstitutional,” in conclusory fashion, plaintiffs
have not alleged any facts from which the Court can infer that these warrants,
once issued, are facially deficient. In light of an officer’s legal duty to arrest
someone on the basis of an outstanding warrant, see, e.g., Smith v. Gonzales,
670 F.2d 522, 527 (5th Cir. 1982), it is questionable whether the City’s
“permitting” the New Orleans Police Department officers to perform their
duties can constitute an official policy of the City. Plaintiffs fail to allege any
facts, or to cite any law, indicating that the City has authority to prohibit
police officers from carrying out their legal duties by executing outstanding
arrest warrants. See Surplus Store & Exch., Inc. v. City of Delphi, 928 F.2d
788, 791 (7th Cir. 1991) (“It is difficult to imagine a municipal policy more
innocuous and constitutionally permissible, and whose causal connection to
the alleged violation is more attenuated, than the 'policy' of enforcing state
law.”).

49

Id. at 7 ¶8.

Further, plaintiffs fail to allege that the City acted with the requisite
degree of culpability to satisfy Monell’s “moving force” element. Aside from
sprinkling their complaint with legal buzzwords, such as “the City knows or
should know,” plaintiffs have failed to plausibly allege any facts from which
the Court can reasonably infer that the City disregarded known or obvious
consequences of its conduct. See Bosarge v. Miss. Bureau of Narcotics, 796
F.3d 435, 442-43 (5th Cir. 2015) (finding phrases such as “knew or should
have known” to be “too conclusory to survive a motion to dismiss”)
(collecting cases). As noted, deliberate indifference is a high standard, and
conclusory allegations or formulaic recitations of the legal elements will not
suffice. See Iqbal, 556 U.S. at 678. Plaintiffs point to two allegations in their
Complaint which they contend undoubtedly reveal that the City had actual
knowledge of the Collections Department’s alleged practices and therefore
chose to participate in the allegedly unconstitutional “scheme.”

First,

plaintiffs note that certain employees of the Collections Department testified
at an evidentiary hearing in an ongoing criminal case, State v. Addison, at
the Criminal District Court. 50 Plaintiffs have not presented any facts from
which this Court can reasonably infer that City policymakers learned the

50

R. Doc. 7 at 1, 29 n.25; R. Doc. 7, Exhibit 1.

substance of a single hearing in a single case pending before the court, which
undisputedly maintains a busy docket.

Second, plaintiffs allege, in a

footnote, that the Criminal District Court “collaborat[ed]” with the New
Orleans Police Department and the District Attorney “to implement a more
efficient online warrant system.”51 From this, plaintiffs contend, “the only
reasonable inference . . . is that [Criminal District Court] officials convinced
the City that it was important to perpetuate and expand their collections
work.”52 This inference, however, is implausible. These entities regularly
perform complementary functions within the criminal justice system to
request, issue, and execute arrest warrants for a host of state and local
crimes. That the Court, the DA, and the police department allegedly worked
to streamline the parish’s arrest warrant process does not suggest that these
actors conspired to jail indigent court debtors in violation of the
Constitution.
In sum, for all its allegations of collective wrongdoing by all eighteen
defendants, plaintiffs fail to plausibly allege that an official policy
attributable to the City of New Orleans caused their alleged constitutional

51

Id. aat 29 n.25.

52

R. Doc. 67 at 8.

injuries. Plaintiffs’ section 1983 claims against the City must therefore be
dismissed. See, e.g., Simmons v. Mesquite Indep. Sch. Dist., CIV. A. No.
3:03–CV–2665, 2004 WL 1171189, at *5 (N.D. Tex. May 26, 2004) ("Because
plaintiffs fail to allege that they were damaged by the action of an official
policymaker or defendant's policy, practice, or custom, plaintiffs have failed
to state a claim under § 1983.").
B.

State-Law Claims

In addition to their section 1983 claims, plaintiffs also allege that
“defendants” are liable for wrongful arrest (count seven) and wrongful
imprisonment (count eight) under Louisiana law. The City of New Orleans
challenges plaintiffs’ ability to state a claim under the Louisiana
jurisprudence. 53 Plaintiffs neglected to reference any Louisiana law on this
point in their opposition.
To start, “wrongful arrest” and “wrongful imprisonment” are not
separate causes of action. See Kennedy v. Sheriff of E. Baton Rouge, 935 So.
2d 669, 690 (La. 2006) (using “wrongful arrest” and “the tort of false
imprisonment” interchangeably); Parker v. Town of Woodworth, 86 So. 3d

53

R. Doc. 58-1 at 21.

141, 144 (La. App. 3 Cir. 2012) (“[F]alse arrest is not distinguished as a
separate tort from false imprisonment.”).
Plaintiffs fail to state a plausible claim for relief under Louisiana law
due to plaintiffs’ penchant for group pleading and theory of collective
responsibility, as the Court discussed earlier.

In addition, construing

plaintiffs’ complaint most generously—which this Court need not do because
plaintiffs are represented by counsel—the only potential theory of liability
against the City under Louisiana law is vicarious liability or respondeat
superior for the conduct of its employees, officers of the New Orleans Police
Department. As the City argues in its motion to dismiss and as this Court
earlier explained, nothing in plaintiffs’ complaint indicates that the
Collections Department arrest warrants were facially invalid.

Rather,

plaintiffs’ complaint and incorporated state-court hearing transcript indicate
that the warrants appear to be issued under the authority of the Criminal
District Court and appear to bear the signatures of court judges.

In

Louisiana, an arresting officer cannot be liable for false arrest when he acts
pursuant to a facially valid arrest warrant. Winn v. City of Alexandria, 685
So. 2d 281, 283 (La. App. 3 Cir. 1996); accord McMasters v. Dep't of Police,
172 So. 3d 105, 116 (La. App. 4 Cir. 2015) ("[P]robable cause to arrest 'is an
absolute defense to any claim against police officers for wrongful arrest, false

imprisonment, or malicious prosecution.'" (quoting Brown v. City of
Monroe, 135 So. 3d 792, 796 (La. App. 2 Cir. 2014)); Dyas v. Shreveport
Police Dep’t, 136 So. 3d 897, 903 (La. App. 2 Cir. 2014) (“False arrest and
imprisonment occur when one arrests and restrains another against his will
without a warrant or other statutory authority.”). If City employees have not
acted tortuously, the City, as their employer, whose liability is only
“secondary or derivative,” cannot be liable either. Griffin v. Kmart Corp.,
776 So. 2d 1226, 1232 (La. App. 5 Cir. 2000). Therefore, plaintiffs false to
state a claim for false arrest against the City.

IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS the City’s motion to

dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules
of Civil Procedure.

13th
New Orleans, Louisiana, this _______ day of May, 2016.

___________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE