Tillman et al v. Larpenter et al

Filing 58

ORDER AND REASONS denying 37 Motion to Dismiss for Failure to State a Claim. Signed by Judge Jane Triche Milazzo. (ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WYTEIKA TILLMAN, ET AL

CIVIL ACTION

VERSUS

NO: 15-4588

JERRY LARPENTER, ET AL

SECTION “H”

ORDER AND REASONS
Before the Court is Defendants’ Motion to Dismiss (Doc. 37). For the
following reasons, this Motion is DENIED.
BACKGROUND
The incident that gives rise to this suit took place on September 23, 2015,
in Houma, Louisiana. The Complaint alleges that decedent Cameron Tillman
(son of Plaintiffs Wyteika Tillman and Morell Turner) was gathered with
Plaintiffs Andrea Tillman, HW, JT, TP, and JWT at an abandoned house that
they used as their “clubhouse.” All of the above were teenagers at the time of
the incident. Plaintiffs allege that after they were at the house for about 20 to
30 minutes, they heard three knocks at the side door. They aver that Cameron
Tillman opened the door empty-handed and was shot by Terrebonne Parish
Sheriff’s Deputy Preston Norman.

Cameron Tillman died of the gunshot

wounds while the other teenagers were held at gunpoint and removed from the
house. Plaintiffs allege that Defendants failed to properly train and supervise
their officers, leading to this deprivation of their constitutional rights. They
bring actions for wrongful death, survival action, deprivation of rights to
familial relationships, general negligence, assault and battery, police
negligence, and negligent training, hiring, and supervision.
Defendants have filed the instant Motion to Dismiss, arguing that the
Court should dismiss the emotional distress claims of plaintiffs HW, JT, TP,
and JWT. Plaintiffs respond in opposition.
LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead
enough facts “to state a claim to relief that is plausible on its face.”1 A claim is
“plausible on its face” when the pleaded facts allow the court to “[d]raw the
reasonable inference that the defendant is liable for the misconduct alleged.”2
A court must accept the complaint’s factual allegations as true and must “draw
all reasonable inferences in the plaintiff’s favor.”3

The Court need not,

however, accept as true legal conclusions couched as factual allegations.4
To be legally sufficient, a complaint must establish more than a “sheer
possibility” that the plaintiff’s claims are true.5 “A pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’”

Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 547 (2007)).
2 Id.
3 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
4 Iqbal, 556 U.S. at 667.
5 Id.
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will not suffice.6

Rather, the complaint must contain enough factual

allegations to raise a reasonable expectation that discovery will reveal evidence
of each element of the plaintiffs’ claim.7
LAW AND ANALYSIS
In this Motion, Defendants argue that (1) the claims of HW, JT, TP, and
JWT are not cognizable under state law as bystander claims and (2) that any
of Plaintiffs’ claims for emotional distress brought pursuant to 42 U.S.C. § 1983
should be dismissed because such damages are not recoverable under § 1983.
The Court will address these arguments in turn.
I. State Law Claims
Defendants aver that any bystander claims for emotional damages or
mental pain and suffering brought by HW, JT, TP, and JWT are prohibited
under Louisiana Civil Code article 2315.6. Defendants’ argument assumes
that the sole predicate for Plaintiffs’ emotional distress claims is the fact that
they observed the shooting of Cameron Tillman. Plaintiffs respond, averring
that they bring no such claims, instead bringing state law claims of excessive
force, assault and battery, and negligence arising out of the conduct of the
officers allegedly directed at them personally. Because Plaintiffs do not bring
the claims challenged by Defendants, the Motion is moot with respect to
Plaintiffs’ state law claims.
II. § 1983 Claims
Defendants next argue that any claims for emotional damages under 42
U.S.C. § 1983 stemming from observing the shooting of Cameron Tillman are

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7

Id. at 678 (quoting Twombly, 550 U.S. at 555).
Lormand, 565 F.3d at 255–57.

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precluded by Fifth Circuit precedent. In advancing this argument, they rely
on the case of Grandstaff v. City of Borger, Tex.8 There, the court set aside a
damages award for emotional distress based on 42 U.S.C. § 1983 where the
plaintiffs in question simply observed a violation of § 1983. The Court noted
that “there is no constitutional right to be free from witnessing . . . police
action.”9 Plaintiffs respond, arguing that unlike the Plaintiffs in Grandstaff,
their claims are based on alleged violations of their own constitutional rights
as participants in the events in question, not bystanders. Specifically, they
point to the allegation that the officer in question shot at all the youths in the
room, not just Cameron Tillman. They also allege that they were subsequently
held at gunpoint. Under the facts as alleged, the Court agrees that Grandstaff
is not controlling and that Plaintiffs’ § 1983 claims should be preserved at this
time.
CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss is DENIED.
New Orleans, Louisiana this 22nd day of May, 2017.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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9

767 F.2d 161, 172 (5th Cir. 1985).
Id.

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