Armstead v. New Orleans City et al

Filing 13

ORDER AND REASONS granting 8 , 11 Motions to Dismiss. All claims against Defendant State of Louisiana are DISMISSED WITH PREJUDICE. Plaintiff's 1983 claims arising out of his 1975 arrest, conviction, and incarceration are likewise DISMISSED WITH PREJUDICE. All other claims are DISMISSED WITHOUT PREJUDICE. Plaintiff shall amend his Complaint within 20 days of this Order. Signed by Judge Jane Triche Milazzo. (ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MILTON ARMSTEAD

CIVIL ACTION

VERSUS

NO: 16-13629

CITY OF NEW ORLEANS AND
STATE OF LOUISIANA

SECTION: “H”(2)

ORDER AND REASONS
Before the Court are Defendant State of Louisiana’s Motion to Dismiss
(Doc. 8) and Defendant City of New Orleans’s Motion to Dismiss (Doc. 11). For
the following reasons, the Motions are GRANTED.
BACKGROUND
On August 5, 2016, Plaintiff Milton Armstead filed this pro se civil action
pursuant to 42 U.S.C. §§ 1983 and 1985 claiming lifelong systematic
discrimination at the hands of the Defendants, the City of New Orleans and
the State of Louisiana, which culminated in his wrongful arrest, prosecution,
and conviction. Plaintiff seeks declaratory relief and damages.
Plaintiff claims his Constitutional rights were violated when police
entered and searched his home, seizing certain incriminating items that led to
his arrest and conviction. He argues that his conviction was part of a larger
scheme to incarcerate African-Americans to generate certain revenue and
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benefits for various political figures, and he concludes that such a system is
tantamount to modern day slavery.
Defendant State of Louisiana has filed a Motion to Dismiss pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Defendant City of New
Orleans has filed a Motion to Dismiss for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6). This Court will address each
argument in turn.
LEGAL STANDARD
A. Lack of Subject Matter Jurisdiction
Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure
allow a party to challenge the subject matter jurisdiction of the district court
to hear a case. 1 Lack of subject matter jurisdiction may be found in any one of
three instances: (1) the complaint alone; (2) the complaint supplemented by
undisputed facts evidenced in the record; or (3) the complaint supplemented by
undisputed facts plus the court’s resolution of disputed facts. 2 The burden of
proof for a Rule 12(b)(1) motion to dismiss is on the party asserting
jurisdiction. 3 Accordingly, the plaintiff constantly bears the burden of proof
that jurisdiction does in fact exist. 4
When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12
motions, the court should consider the Rule 12(b)(1) jurisdictional attack before
addressing any attack on the merits. 5 This requirement prevents a court
without jurisdiction from prematurely dismissing a case with prejudice. 6 The

Fed. R. Civ. P. 12(b)(1).
Barrera–Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996).
3 McDaniel v. United States, 899 F.Supp. 305, 307 (E.D. Tex. 1995).
4 Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980).
5 Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (per curiam).
6 Id.
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court’s dismissal of a plaintiff’s case because the plaintiff lacks subject matter
jurisdiction is not a determination of the merits and does not prevent the
plaintiff from pursuing a claim in a court that does have proper jurisdiction. 7
In examining a Rule 12(b)(1) motion, the district court is empowered to
consider matters of fact that may be in dispute. 8 Ultimately, a motion to
dismiss for lack of subject matter jurisdiction should be granted only if it
appears certain that the plaintiff cannot prove any set of facts in support of his
claim that would entitle the plaintiff to relief. 9
B. Failure to State a Claim
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.” 10 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.” 11
A court must accept the complaint’s factual allegations as true and must “draw
all reasonable inferences in the plaintiff’s favor.” 12

The Court need not,

however, accept as true legal conclusions couched as factual allegations. 13
To be legally sufficient, a complaint must establish more than a “sheer
possibility” that the plaintiff’s claims are true. 14 “A pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’ ”
will not suffice. 15

Rather, the complaint must contain enough factual

Id.
Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981).
9 Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th
Cir. 1998); Ramming v. U.S., 281 F.3d 158, 161 (5th Cir. 2001).
10 Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547, 127 S.Ct. 1955, 167 L.Ed.2d 929
(2007)).
11 Iqbal, 129 S.Ct. at 1949.
12 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
13 Iqbal, 129 S.Ct. at 1949–50.
14 Id.
15 Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 127 S.Ct. at 1955).
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allegations to raise a reasonable expectation that discovery will reveal evidence
of each element of the plaintiff’s claim. 16 The Court’s review “is limited to the
complaint, any documents attached to the complaint, and any documents
attached to the motion to dismiss that are central to the claim and referenced
by the complaint.” 17
LAW AND ANALYSIS
A. Lack of Subject Matter Jurisdiction
Defendant, the State of Louisiana, contends that it is entitled to
sovereign immunity from suit under the Eleventh Amendment. The Eleventh
Amendment prohibits an individual from suing a state in federal court “unless
the state consents to suit or Congress has clearly and validly abrogated the
state’s sovereign immunity.” 18 Courts will find a waiver “only where stated by
the most express language or by such overwhelming implications for the text
as will leave no room for any other reasonable construction.” 19 The United
States Supreme Court has held that Congress did not abrogate the States’
sovereign immunity in passing Section 1983. 20
By statute, the State of Louisiana has not waived its sovereign immunity
from suits brought in federal court based on violations of “constitutional, civil
and human rights.” 21 As such, a suit in federal court in which a state or one of
its agencies or departments is named as defendant is proscribed by the

Lormand, 565 F.3d at 255–57.
Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir.
2010) (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000)).
18 Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 326 (5th Cir. 2002).
19 Edelman v. Jordan, 415 U.S. 651, 673 (1974).
20 Id. at 673.
21 “No suit against the state or a state agency or political subdivision shall be
instituted in any court other than a Louisiana state court.” LA. REV. STAT. 13:5106(A);
Richardson v. S. Univ., 118 F.3d 450, 453 (5th Cir. 1997).
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Eleventh Amendment. 22

In addition, the doctrine of Ex Parte Young is

applicable only to suits against state officials and thus does not apply here to
allow a suit for prospective relief against the State of Louisiana. 23 Accordingly,
the State of Louisiana is entitled to sovereign immunity from Plaintiffs’ claims,
and those claims are therefore dismissed with prejudice for lack of subject
matter jurisdiction.
B. Failure to State a Claim
Next, the City of New Orleans (“the City”) argues that Plaintiffs’ Complaint
fails to state a claim under either § 1983 or § 1985. In its Motion, the City
fairly outlines the allegations of Plaintiff’s Complaint:
Plaintiff
alleges
a
wide-ranging
conspiracy
of
disenfranchisement and functional slavery against the Orleans
Parish Criminal Justice System in violation of 42 U.S.C. Section
1983. Plaintiff claims he was unduly convicted in 1975 and
enslaved in prison by the City and State of Louisiana. He also
alleges the income disparity and poor conditions of many African
Americans in New Orleans is due to the City’s treatment of slaves
and their descendants. He contends the City violated his Fourth
Amendment rights by unreasonably searching and seizing his
property during the investigation of his criminal charge in 1975.
Plaintiff further alleges he was deprived of his Fourteenth
Amendment due process rights during his criminal investigation
prosecution, leading to wrongful conviction. Among other reasons,
Plaintiff also believes his criminal appeal to the Louisiana
Supreme Court was flawed because the trial court did not conduct
a full and fair Fourth Amendment hearing.
Plaintiff also complains of Louisiana’s majority jury verdict
system, Brady violations by the former Orleans Parish District
Attorney, the use of eye witness identifications, the failure of the
Clerk of the Orleans Parish Criminal District Court to produce
records related to his criminal conviction, and the lack of
retroactive application of the wrongful conviction and
imprisonment compensation statute. To Plaintiff, many of these
Evans v. Dept. of Hous. and Urb. Dev., No. 03-2411, 2004 WL 179193, at *3–4 (E.D.
La. Jan. 28, 2004).
23 See Ex parte Young, 209 U.S. 123 (1908).
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practices—combined with Louisiana’s dark racial legacy from the
Black
Codes
through
Jim
Crow—“continue
the
disenfranchisement” of local African-Americans. Plaintiff also
accuses the City of direct involvement in treating AfricanAmericans and Plaintiff “as if they have no rights.” Finally,
Plaintiff alleges his son was unfairly arrested, prosecuted, and
punished by the local criminal justice system.
Plaintiff requests the release of his record from his criminal
case. In addition, he also seeks a declaratory judgment stating his
Fourth Amendment rights were violated, that the City and State
of Louisiana failed to adequately train and supervise employees,
and that the City has failed to compensate slaves and their
descendants or allow them to inherit undisposed ancestral
property. Finally, Plaintiff seeks a declaration that he and his son
were wrongfully convicted and that the wrongful conviction and
imprisonment statute is unconstitutional. He also requests
attorney’s fees. 24
Pro se complaints are “construed liberally,” 25 and they are “held to less
stringent standards than formal pleadings drafted by lawyers.” 26 However,
conclusory allegations and unwarranted factual deductions will not suffice to
avoid a motion to dismiss. 27 This Court will consider Plaintiff’s claims in turn.
1. 42 U.S.C. § 1983
Plaintiff brings an action under 42 U.S.C. § 1983 for violations of his civil
rights. This statute 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 any statute, ordinance, regulation, custom, or usage of
any State or Territory.” 28 Put differently, “[t]o state a claim under § 1983,

Doc. 11-1.
Johnson v. Watkins, 999 F.2d 99, 100 (5th Cir. 1993).
26 Taylor v. Books a Million, Inc. 296 F.3d 376, 378 (5th Cir. 2002) (quoting Miller v.
Stanmore, 636 F.2d 986, 987 (5th Cir. 1981).
27 United States ex rel. Willard v. Humana Health Plan of Tex., Inc., 336 F.3d 375,
379 (5th Cir. 2003). See also S. Christian Leadership Conf. v. Sup. Ct. of La., 252 F. 3d 781,
786 (5th Cir. 2001).
28 42 U.S.C. § 1983.
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plaintiffs must allege two elements: first that they were deprived of a right or
interest secured by the Constitution and laws of the United States, and second
that the deprivation occurred under color of state law.” 29
Plaintiff’s claims that his Fourth Amendment rights were violated when
police conducted an unreasonable search of his home, seizing certain items that
led to his arrest and conviction. Additionally, he alleges that his Fourteenth
Amendment Due Process rights were violated when he was denied a full and
fair Fourth Amendment hearing in his criminal appeal to the Louisiana
Supreme Court.
Defendant points out that any claim under § 1983 in relation to
Plaintiff’s 1975 arrest and conviction has long prescribed.

Indeed, the

applicable prescriptive period to § 1983 claims in Louisiana is one year.
“Because there is no federal statute of limitations for § 1983 claims, the district
court looks to the forum state’s statute of limitations for personal injury claims.
In Louisiana, personal injury claims are governed by La. Civ. Code Art. 3492,
which provides for a prescriptive period of one year from the date of injury or
damage.” 30 Plaintiff’s Complaint clearly states that he was convicted in 1975
and imprisoned until 1995. Accordingly, any claim alleging constitutional
violations arising out of that arrest, conviction, or incarceration has long since
prescribed. “When a petition reveals on its face that prescription has run, the
plaintiff has the burden of showing why the claim has not prescribed.” 31
Plaintiff argues that the doctrine of contra non valentem applies to
suspend the running of prescription on these claims. Specifically, he broadly
argues that racism and corruption prevented him from bringing his claims.

Doe v. Rains County Ind. School Dist, 66 F.3d 1402, 1406 (5th Cir. 1995).
Carroll v. Gusman, No. 06-9031, 2009 WL 2949997, at *3 (E.D. La. Sept. 10, 2009)
(citing Jacobsen v. Osborne, 133 F.3d 315, 319 (5th Cir. 1998)).
31 Wimberly v. Gatch, 635 So. 2d 206, 211 (La. 1994).
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The doctrine of contra non valentem, however, only applies in “exceptional
circumstances.” 32 Plaintiff has not alleged any specific force beyond his control
that prevented him from filing suit for the past decade. Such conclusory
allegations are insufficient to invoke the doctrine of contra non valentem. 33
Accordingly, all of Plaintiffs’ allegations regarding constitutional violations
arising out of his 1975 arrest, conviction, and incarceration have prescribed
and are dismissed with prejudice.
2. Municipal Liability under § 1983
Plaintiff next claims that the City of New Orleans is liable for its
mistreatment of African Americans and for its failure to properly train and
supervise its employees. In order to bring these claims of municipal liability,
Plaintiff must allege three elements: “a policymaker; an official policy; and a
violation of constitutional rights whose ‘moving force’ is the policy or custom.” 34
Plaintiff has not satisfied any of these requirements. While Plaintiff outlines
his perception of the impact of certain laws on the African American
community, he does not allege facts suggesting that this impact is the result of
a policy that has been adopted by some policymaker in the City. “[E]ach and
any policy which allegedly caused constitutional violations must be specifically
identified by a plaintiff.” 35 Plaintiff’s Complaint is devoid of any specific facts
supporting these claims.
3. 42 U.S.C. § 1985
Plaintiff next alleges a conspiracy claim under § 1985.
To state a claim under 42 U.S.C. § 1985(3), a plaintiff must
allege: (1) a conspiracy involving two or more persons; (2) for the
purpose of depriving, directly or indirectly, a person or class of
persons of the equal protection of the laws; and (3) an act in
Marin v. Exxon Mobil Corp., 48 So. 3d 234, 245 (La. 2010).
See Kirby v. Field, 923 So. 2d 131, 137 (La. App. 1 Cir. 2005).
34 Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001).
35 Id. at 579.
32
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furtherance of the conspiracy; (4) which causes injury to a person
or property, or a deprivation of any right or privilege of a citizen of
the United States. In so doing, the plaintiff must show that the
conspiracy was motivated by a class-based animus. 36
“The essence of a conspiracy is an understanding or agreement between
the conspirators.” 37 “Plaintiffs who assert claims under . . . § 1985, must plead
the operative facts upon which their claim is based.

Mere conclusory

allegations are insufficient. Equal specificity is required when a charge of
conspiracy is made.” 38
Plaintiff’s § 1985 claim is inadequately pled because he fails to disclose
any operative facts demonstrating an understanding or agreement between
Defendants to interfere with his civil rights.

Accordingly, this claim is

dismissed.
4. Miscellaneous Claims
Finally, Plaintiff’s Complaint takes issue with Louisiana’s majority jury
verdict system. Such a claim is not, however, properly brought against the
City of New Orleans. 39

In addition, Plaintiff raises concerns about the

unconstitutional conviction of his son. Plaintiff’s son—and not Plaintiff—is the
proper party to seek recovery for such an injury. Accordingly, these claims are
likewise dismissed.
CONCLUSION
For the reasons set forth above, Defendants’ Motions to Dismiss are
GRANTED.

All

claims

against

Defendant

State

of

Louisiana

are

DISMISSED WITH PREJUDICE. Plaintiff’s § 1983 claims arising out of his

Hilliard v. Ferguson, 30 F.3d 649, 652–53 (5th Cir. 1994).
Holdiness v. Stroud, 808 F.2d 417, 424–25 (5th Cir. 1987) (citations omitted).
38 Id. at 424 (citations omitted).
39 See Ex parte Young, 209 U.S. 123, 151 (1908).
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1975 arrest, conviction, and incarceration are likewise DISMISSED WITH
PREJUDICE. All other claims are DISMISSED WITHOUT PREJUDICE,
and Plaintiff shall amend his Complaint within 20 days of this Order to the
extent that he can remedy the deficiencies identified herein and state a claim
upon which relief can be granted.

New Orleans, Louisiana this 2nd day of December, 2016.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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