D'Aquin v. Landrieu et al

Filing 41

ORDER granting 30 Motion to Dismiss for Failure to State a Claim. Granting 31 Motion to Dismiss for Failure to State a Claim. Granting 34 Motion to Dismiss for Failure to State a Claim. Granting 34 Motion for More Definite Statement. Gran ting 9 Motion to Dismiss Party. Granting 11 Motion for Leave to File Amended Complaint. Granting 14 Motion to Dismiss for Failure to State a Claim. Granting 17 Motion to Dismiss for Failure to State a Claim. Granting 17 Motion to Di smiss for Lack of Jurisdiction. Granting 23 Motion to Dismiss for Failure to State a Claim. Party Superintendent Harrison, Mitch Landrieu (Mayor), Brian Lapeyrolerie, New Orleans Police Department, Mr. Noble, Paul Noel, Penske Truck Leasing Co., L.P. (incorrectly identified as Penske Truck Rental), Gordon Secou, Tulane Police Department, Assurant, Inc. (incorrectly named Assurante) and Herbert Cade dismissed. Signed by Judge Sarah S. Vance on 12/9/2016. (mmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
THOMAS L. D’AQUIN

CIVIL ACTION

VERSUS

NO. 16-3862

MAYOR MITCH LANDRIEU, ET AL.

SECTION “R” (2)

ORDER AND REASONS
Before the Court are motions to dismiss plaintiff Thomas L. D’aquin’s
complaint filed by defendants Gordon Secou;1 Assurant, Inc.;2 Brian
Lapeyrolerie;3 Penske Truck Rental; 4 Judge Herbert Cade;5 Tulane
Educational Fund; 6 Mayor Mitch Landreiu; 7 and New Orleans Police
Department.8 Also before the Court is plaintiff’s motion to file an amended
complaint. 9

The Court GRANTS plaintiff’s motion to file an amended

complaint, but because plaintiff’s amended complaint fails to state a claim,
the Court GRANTS defendants’ motions.

1
2
3
4
5
6
7
8
9

R. Doc. 9.
R. Doc. 14.
R. Doc. 17.
R. Doc. 23.
R. Doc. 30.
R. Doc. 31.
R. Doc. 34.
Id.
R. Doc. 11.

I.

BACKGROUND
Plaintiff Thomas L. D’aquin filed this pro se lawsuit on April 29, 2016.

Plaintiff sued twenty-two defendants, and while his complaint is difficult to
understand, the complaint appears to allege that various actors in the New
Orleans criminal justice system conspired to threaten plaintiff, ignore his
complaints, and deprive him of his constitutional rights. 10

Plaintiff’s

complaint, however, is not limited to public officials; he sues private citizens
and corporations as well. Plaintiff’s complaint additionally alleges that the
defendants violated various federal criminal hate crime statutes, as well as
42 U.S.C. § 1983.

Plaintiff seeks $10,000,000 from each defendant.

Defendants’ motions seek dismissal pursuant to both Rule 12(b)(1) and Rule
12(b)(6) of the Federal Rules of Civil Procedure.

II.

LEGAL STANDARD
A.

Rule 12(b)(1)

Fed. R. Civ. P. 12(b)(1) requires dismissal of an action if the court lacks
jurisdiction over the subject matter of the plaintiff’s claim. Motions
submitted under that rule allow a party to challenge the court’s subject

R. Doc. 1 at 2-4. Though plaintiff does not identify any specific
constitutional provision, he alleges that he was arrested without probable
cause and subject to an unlawful search and seizure. Id. at 4.
2
10

matter jurisdiction based upon the allegations on the face of the complaint.
Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996); see
also Lopez v. City of Dallas, No. 03-2223, 2006 WL 1450420, at *2 (N.D.
Tex. May 24, 2006).
If the court lacks the statutory or constitutional power to adjudicate a
claim, the claim must be dismissed for lack of subject matter jurisdiction.
Home Builders Ass’n of Mississippi, Inc. v. City of Madison, Miss., 143 F.3d
1006, 1010 (5th Cir. 1998). A court has federal question jurisdiction when
the plaintiff’s claim arises under the Constitution, laws, or treaties of the
United States. 28 U.S.C. § 1331. A claim arises under federal law when
federal law creates the cause of action. Grable & Sons Metal Prods., Inc. v.
Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005). When “a private citizen relies
on a federal statute as the basis of federal question jurisdiction, that statute
must provide a private cause of action, or else a federal court will not have
subject matter jurisdiction to hear the dispute.” Lowe v. ViewPoint Bank,
972 F. Supp. 2d 947, 954 (N.D. Tex. 2013) (citing Merrell Dow
Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 817 (1986)).
In ruling on a Rule 12(b)(1) motion to dismiss, the court may rely on
(1) the complaint alone, presuming the allegations to be true, (2) the
complaint supplemented by undisputed facts, or (3) the complaint
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supplemented by undisputed facts and by the court’s resolution of disputed
facts. Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424
(5th Cir. 2001); see also Barrera-Montenegro, 74 F.3d at 659. A court’s
dismissal of a case for lack of subject-matter jurisdiction is not a decision on
the merits, and the dismissal does not necessarily prevent the plaintiff from
pursuing the claim in another forum. See Hitt v. City of Pasadena, 561 F.2d
606, 608 (5th Cir. 1977).
B.

Rule 12(b)(6)

When a defendant attacks the complaint because it fails to state a
legally cognizable claim, Rule 12(b)(6) provides the appropriate challenge.
To survive a Rule 12(b)(6) motion to dismiss, plaintiffs must plead enough
facts “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 547 (2007)). A claim is facially plausible when a 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 wellpleaded facts as true and must draw all reasonable inferences in favor of the
plaintiffs. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir.
2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). But the Court is not

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bound to accept as true legal conclusions couched as factual allegations.
Iqbal, 556 U.S. at 678.
A legally sufficient complaint must establish more than a “sheer
possibility” that plaintiffs’ claim is true. Id. 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. Twombly, 550 U.S.
at 555. 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 plaintiffs’ claim. Lormand, 565 F.3d at 255-57. If
there are insufficient factual allegations to raise a right to relief above the
speculative level, Twombly, 550 U.S. at 555, or if it is apparent from the face
of the complaint that there is an insuperable bar to relief, Jones v. Bock, 549
U.S. 199, 215 (2007); Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 2007),
the claim must be dismissed.
Finally, because plaintiff is a pro se litigant, the Court will apply “less
stringent standards to parties proceeding pro se than to parties represented
by counsel. Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995) (per curiam).
This does not mean, however, that a court “will invent, out of whole cloth,
novel arguments on behalf of a pro se plaintiff in the absence of meaningful,
albeit imperfect, briefing.” Jones v. Alfred, 353 F. App’x 949, 951-52 (5th
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Cir. 2009). Therefore, even a liberally construed pro se complaint “must set
forth facts giving rise to a claim on which relief may be granted.” Johnson v.
Atkins, 999 F.2d 99, 100 (5th Cir. 1993).

III. DISCUSSION
The motions to dismiss attack plaintiff’s complaint both on
jurisdictional grounds and for failure to state a claim. Each argument will be
addressed in turn.
A.

Subject Matter Jurisdiction

Federal courts are courts of limited jurisdiction and possess power over
only those cases authorized by the United States Constitution and federal
statutes. Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996). Here, there is no
basis for diversity jurisdiction as the plaintiff and many of the defendants are
Louisiana citizens. Though plaintiff does not mention federal question
jurisdiction under 28 U.S.C. § 1331 in his complaint, he does allege that the
defendants have violated federal law. More specifically, plaintiff cites 18
U.S.C. § 242, 18 U.S.C. § 243, 18 U.S.C. § 249, and 42 U.S.C. § 1983.
Section 242 of Title 18 is a criminal statute that criminalizes
deprivation of rights under color of law. Section 243 is a criminal statute that
criminalizes the exclusion of qualified jurors in any state or federal grand or
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petit jury on the basis of race, color or previous condition of servitude.
Section 249 is the federal hate crime statute. Unless explicitly provided for
in the statute, violations of criminal statutes do not provide a private right of
action. See Lopez v. Dallas Ministry Center, No. 12-0606, 2012 WL 1413526,
at *2 (N.D. Tex. Mar. 9, 2012); Ali v. Shabazz, 8 F.3d 22, 1993 WL 456323,
at *1 (5th Cir. Oct. 28, 1993) (quoting Cort v. Ash, 422 U.S. 66, 79 (1975)).
None of the criminal statutes cited by plaintiff provides for a private cause of
action, and therefore cannot establish jurisdiction under 28 U.S.C. § 1331.
See Gill v. State of Texas, 153 F.App’x 261, 262 (5th Cir. 2005) (stating 18
U.S.C. § 242 does “not provide a basis for civil liability”); Hall v. Valeska,
509 F. App’x 834, 837 (11th Cir. 2012) (holding that 18 U.S.C. § 243 does not
provide a private right of action); D’Aquin v. Starwood Hotels and
Worldwide Properties Inc., No. 15-1963, 2015 WL 5254735, at *2 (E.D. La.
Sept. 8, 2015) (holding that 18 U.S.C. § 249 “does not provide for any civil
cause of action”) (citation omitted). Therefore, any claims brought under 18
U.S.C. §§ 242, 243, and 249 must be dismissed for lack of subject matter
jurisdiction. See ViewPoint Bank, 972 F. Supp. at 954.
Plaintiff does appear to bring an action under 42 U.S.C. § 1983, which
is sufficient to grant the Court subject matter jurisdiction. Therefore, the
Court will address the sufficiently of plaintiff’s section 1983 claim.
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B.

Failure to State a Claim

Plaintiff asserts a section 1983 claim against various public and private
defendants. Section 1983 provides a civil remedy for deprivations of rights
secured by the Constitution and laws of the United States when that
deprivation takes place under color of state law. See Doe v. Rains Cty. Indep.
Sch. Dist., 66 F.3d 1402, 1406 (5th Cir. 1995). The “under color of state law”
requirement means that the defendant in a section 1983 action must have
exercised power “possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law.” West v.
Atkins, 487 U.S. 42, 49 (1988) (citing United States v. Classic, 313 U.S. 299,
326 (1941)). This excludes purely private conduct, no matter how wrongful.
See American Mfrs. Mut. Ins. Co v. Sullivan, 526 U.S. 40, 50 (1999).
1.

Private Defendants

Plaintiff’s complaint names private actors and private corporations as
defendants. And while private actors can be liable under section 1983, there
will be liability only if the plaintiff alleges that the private actor conspired or
acted in concert with state actors. Priester v. Lowndes County, 354 F.3d 414,
420 (5th Cir. 2004). The Fifth Circuit has previously held that the plaintiff
must allege an agreement between the public and private defendants to
commit an illegal act and deprive the plaintiff of constitutional rights. Id.
8

Allegations that are merely conclusory, without reference to specific facts,
will not suffice. Id. (citing Brinkmann v. Johnston, 793 F.2d 111, 113 (5th
Cir. 1986)). Plaintiff’s complaint does not allege an agreement between the
public and private defendants, nor does it allege specific facts to show an
agreement. Therefore, plaintiff’s claims against the Tulane Educational
Fund, Maurice Landrieu, Brian Lapeyrolerie, Bill Lemoine, Assurant, Inc.,
and Penske Truck Leasing Co. are dismissed.
2.

Public Defendants

As mentioned above, to state a viable section 1983 claim, the plaintiff
must allege a violation of a right secured by the Constitution or the laws of
the United States and show that the violation was committed by a person
acting under color of state law. Whitley v. Hanna, 726 F.3d 631, 638 (5th
Cir. 2013). The only identifiable rights in plaintiff’s complaint secured by the
Constitution or federal law are the Fourth Amendment rights against
unreasonable searches and seizures and against unlawful arrest.
Aside from conclusorily alleging that he was arrested without a warrant
and that his property was illegally searched, plaintiff’s complaint alleges no
specific facts to support the conclusion that his Fourth Amendment rights
were violated. Plaintiff’s complaint does not disclose the date or location of
his arrest, the charge, the identity of the arresting officer, or who allegedly
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searched his property unlawfully. Thus, the complaint is devoid of detail, let
alone any factual basis to support the conclusion that plaintiff’s Fourth
Amendment rights were violated. See Jones v. Alcoa, Inc., 339 F.3d 359, 363
(5th Cir. 2003). Merely citing the elements of a Fourth Amendment claim
will not suffice. Iqbal, 556 U.S. at 677. Plaintiff’s pro se status does not
relieve him of the obligation to set forth facts giving rise to a claim on which
relief may be granted, Johnson, 999 F.2d at 100, and he has not done so.
Therefore, plaintiff’s remaining claims are dismissed.

IV.

CONCLUSION
For the foregoing reasons, plaintiff’s motion to amend his complaint is

GRANTED. Defendants’ motions to dismiss are GRANTED. Plaintiff’s
amended complaint is DISMISSED in its entirety.11

9th
New Orleans, Louisiana, this _____ day of December, 2016.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

This plaintiff has filed at least 15 cases in this district since
February 2015. Eight have already been dismissed either for failure to state
a claim or on jurisdictional grounds.
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