Rodgers, et al v. Gusman, et al

Filing 31

ORDER: IT IS HEREBY ORDERED that 12 Defendant's Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim is DENIED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that Plaintiff is granted leave to amend her complaint within thirty days of this Order to cure the deficiencies noted, if possible. Signed by Judge Nannette Jolivette Brown on 10/16/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LATASHA RODGERS

CIVIL ACTION

VERSUS

CASE NO. 16-16303

MARLIN GUSMAN, et al.

SECTION: “G” (3)

ORDER
In this litigation, Plaintiff Latasha Rodgers, Tutrix (“Plaintiff”), on behalf of her minor
child CJTJ, alleges that Defendants Orleans Parish Prison, Sheriff Marlin Gusman, the City of
New Orleans (the “City”), Mayor Mitch Landrieu, the New Orleans City Council, and certain
unidentified parties acting under the authority of the Orleans Parish Prison, subjected CJTJ’s father
(“Decedent”), a pretrial detainee at the Orleans Parish Prison, to excessive force, assaulted and
battered Decedent, and acted with deliberate indifference to his medical needs, resulting in
Decedent’s death, in violation of his and Plaintiff’s constitutional rights under the Fourth, Eighth,
and Fourteenth Amendments, and Louisiana law.1 Pending before the Court is Defendants Mayor
Mitch Landrieu and the New Orleans City Council’s (collectively, “Defendants”) “Rule 12(b)(6)
Motion to Dismiss for Failure to State a Claim.”2

1

Rec. Doc. 1 at 1–4.

2

Rec. Doc. 12.

1

Having considered the motion, the memoranda in support and opposition, the complaint,
and the applicable law, the Court will deny the motion without prejudice and grant Plaintiff leave
to amend her complaint.
I. Background
A.

Factual Background
In the complaint, Plaintiff avers that on September 24, 2015, Decedent was a pretrial

detainee at the Orleans Parish Prison (the “Prison”). Plaintiff additionally avers that Decedent had
been diagnosed with Sickle Cell Disease and Hepatitis C, which was “verified by OPP3 medical
intake form.”4 Plaintiff alleges that since October 2015, Decedent had experienced leg pain and
medical complications in the chest and abdomen.5 According to Plaintiff, however, OPP failed to
provide him with his medication or take him to the hospital.6 In addition, Plaintiff alleges that on
October 3, 2015, Decedent was attacked and stabbed in the arm by an inmate, and on another
occasion, Decedent was choked by a security guard.7 Plaintiff avers that on neither occasion was
Defendant taken to the hospital.8
On November 11, 2015, according to Plaintiff, Decedent experienced a severe sickle cell
pain crisis in his abdomen and lower extremity, chest, back, and left leg, but was not taken to the

3

Although Plaintiff does not define “OPP,” the Court assumes OPP refers to Orleans Parish Prison.

4

Rec. Doc. 1 at 4.

5

Id.

6

Id.

7

Id.

8

Id.

2

hospital until the next day on November 12, 2016.9 While Decedent was at University Medical
Center, Plaintiff avers, his condition worsened—he became diaphoretic and unresponsive, had
problems breathing, and on November 15, 2016, died.10 Plaintiff alleges that Defendants’ conduct
demonstrates a “wanton disregard” for Decedent’s “serious medical needs.”11
Plaintiff alleges that Defendants, acting as decisionmakers, maintained, enforced, tolerated,
permitted, acquiesced in, and applied policies, practices, or customs and usages that violated the
constitutional rights of Decedent and Plaintiff.12 Specifically, Plaintiff alleges that Defendants
violated the Constitution by (1) allowing their deputies to abandon their obligations to protect the
people in their direct custody from harm; (2) having a policy, practice, or custom of intentionally
suspending, or failing to provide, medication to Decedent; (3) ignoring Decedent’s complaint for
medical assistance, thereby allowing his severe medical crises to worsen; (4) having deficient
staffing, security policies and practices, and inadequate medical treatment; (5) subjecting inmates
to unreasonable uses of force against their persons; (6) selecting, retaining, and assigning
employees with demonstrable propensities for excess force, violence, and negligence, and other
misconduct; (7) failing to train and supervise employees in how to properly administer medication
and care for the people in their custody; and (8) condoning and encouraging officers in the belief
that they can violate the rights of persons such as Decedent with impunity, and that such conduct
will not adversely affect their opportunities for promotion and other employment benefits.13

9

Id.

10

Id.

11

Id.

12

Id.

13

Id. at 5.

3

Plaintiffs allege that Defendants’ conduct constitutes a pattern of constitutional violations
based on either a deliberate plan by Defendants, or Defendants’ deliberate indifference, gross
negligence, or reckless disregard for the safety, security, and rights of Plaintiff and Decedent.14
Plaintiff claims that as a result of Defendants’ conduct, CJTJ lost Decedent’s love, comfort,
society, consortium, care, affection, support, and enjoyment of life, and has sustained emotional
distress.15
B.

Procedural Background
Plaintiff filed a complaint on November 10, 2016.16 On December 12, 2016, Defendant

Marlin Gusman filed an answer to the complaint.17 On February 6, 2017, the Court granted
Defendant Orleans Parish Sheriff Office’s motion to dismiss18 all claims against it, filed on
December 12, 2016.19 On March 27, 2017, Defendants filed the instant motion.20 On April 17,
2017, Plaintiff filed a response to Defendants’ motion. On March 21, 2017, with leave of Court,
Defendants filed a reply.

14

Id. at 5–6.

15

Id. at 6.

16

Rec. Doc. 1.

17

Rec. Doc. 4.

18

Rec. Doc. 5.

19

Rec. Doc. 7.

20

Rec. Doc. 12.

4

II. Parties’ Arguments
A.

Defendant’s Motion to Dismiss
In support of the motion to dismiss, Defendants argue that Plaintiff’s complaint does not

state a valid claim against Defendants because it contains no specific allegations of misconduct by
any of the Defendants, only misconduct by actors over whom Defendants have no control or
authority.21 Defendants argue that the Orleans Parish Sheriff (the “Sheriff”), not Defendants,
exercises sole legal authority and control over operation of the Prison and its employees.22
Defendants argue that Plaintiffs impermissibly “lump[ed] all defendants together” and “lodge[d]
accusations and legal conclusions against them,” collectively.23 Defendants further argue that
Plaintiff has not pled sufficient facts to satisfy each element of any one of her claims.24
First, Defendants argue that Plaintiff has failed to state a claim pursuant to 42 U.S.C. § 1983
because “simply naming a municipal defendant is not sufficient to be the foundation of a plausible
claim” under Monell v. Department of Social Services.25 Defendants allege that under Monell, they
can only be liable under Section 1983 if they had a “policy or custom” that “caused the alleged
constitutional deprivation.”26 According to Defendants, Section 1983 allows municipal liability
only when three requirements are met: (1) the municipality had a policy or custom that led to the
constitutional deprivation; (2) that policy was the moving force that actually caused the violation;

21

Rec. Doc. 12-1 at 1.

22

Id. at 1–2.

23

Id. at 2.

24

Id. at 2–3.

25

Id. at 5 (citing Jones v. Spencer, No. 16-1745, 2016 WL 6574162, at *6 (E.D. La. Oct. 5, 2016), report
and recommendation adopted, No. 16-1745, 2016 WL 6563401 (E.D. La. Nov. 4, 2016)).
26

Id. (citing Monell v. Dept’t of Soc. Servs., 436 U.S. 658, 690-91 (1978)).

5

and (3) a municipal policymaker either authorized or had actual or constructive knowledge of the
unconstitutional policy or custom.27 Defendants assert that Plaintiff has not sufficiently alleged that
a “policy” exists, that Defendants’ conduct was the “moving force” behind any violation, or that
Defendants had actual or constructive knowledge, which is Plaintiff’s burden to prove.28
Second, Defendants argue that Plaintiff’s claims rely entirely on the conduct of prison
guards and medical personnel at the Prison. Accordingly, Defendants argue, they can only be liable
if they have some responsibility for the conduct of the prison personnel at issue.29 Defendants assert
that the sole authority over the operations of the Prison and its personnel rests with the Orleans
Parish Sheriff, “which is an independent political entity.”30 According to Defendants, Louisiana
law requires the City to pay the salary of the sheriff, his deputies, and other staff, but gives the
City no power to direct their conduct.31 Moreover, Defendants assert, the Sheriff has sole
policymaking authority over the Prison.32 Thus, Defendants argue, because they are not responsible
for developing policy or training employees at the Prison, they cannot be held liable for any
unconstitutional activity that takes place at the Prison.33 In addition, Defendants argue that the
Eastern District of Louisiana has consistently held in previous cases that local governments are

27

Id.

28

Id. at 6–7.

29

Id. at 7 (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986); Connick v. Thompson, 563 U.S.
51, 61, (2011)).
30

Id. at 8.

31

Id.

32

Id.

33

Id. at 9.

6

under no legal duty to patrol and correct the unconstitutional practices of separate, distinct political
entities.34
Last, Defendants argue that Plaintiff’s state law claims should also be dismissed because
Defendants are not legally responsible for the conduct of prison personnel. Therefore, according
to Defendants, Defendants could not have breached a duty of care toward Decedent, and
Defendants cannot be held liable under a theory of respondeat superior.35 Likewise, Defendants
aver that Louisiana courts have consistently found that parishes, and the City in particular, are not
vicariously liable for the actions of personnel at parish prisons who are under the control of the
parish sheriff.36 According to Defendants, under Louisiana law, the Sheriff has sole control over
the Prison’s policy, operations, and employee management.37 Accordingly, Defendants argue that
Plaintiff’s state claims should be dismissed.
B.

Plaintiff’s Response to Defendant’s Motion to Dismiss
In response to Defendant’s motion to dismiss, Plaintiff argues that her theory of liability

“is not a species of Monell liability, but responsibility based on the City’s habitual underfunding
of the jail.”38 Specifically, Plaintiffs argue that “had the City properly funded jail operations, there
would have been more competent jail personnel who would not have committed the acts alleged

34

Id. at 10–11 (citing Jones v. St. Tammany Parish Jail, 4 F. Supp. 2d 606, 613 (E.D. La. 1998)).

35

Id. at 11.

36

Id. (citing Nall v. Parish of Iberville, 542 So. 2d 145, 148–49 (La. App. 1 Cir. 1/11/89); Vance v. Orleans
Parish Criminal Sheriff’s Dep’t, 483 So. 2d 1178, 1179 (La. App. 4 Cir. 2/14/86)).
37

Id. (citing Broussard v. Foti, No. 00-2318, 2001 WL 25855, at *2 (E.D. La. Mar. 14, 2001); Vance, 483
So. 2d at 1180).
38

Rec. Doc. 14 at 3.

7

in the complaint.”39 Plaintiffs assert that because the City is required by state law to fund the jail,
it is a decisionmaker to the extent it determines the amount of funding to provide.40 Nevertheless,
Plaintiff acknowledges that the complaint does not fully articulate this theory of liability and
requests leave of court to amend the complaint.41
C.

Defendants’ Reply
Defendants argue that amendment of Plaintiff’s complaint to include the allegations

regarding the City’s underfunding of the Prison would be futile.42 In particular, Defendants argue
that the only available federal claim against the City Defendants for policymaking is a Section
1983 Monell claim. Without citing any authority, Defendants further argue that an allegation of
underfunding would be insufficient to support such a claim because the Eastern District of
Louisiana has held that funding the Prison does not render the City liable for constitutional harms
that occur at the Prison, which is under the sole authority of the Orleans Parish Sheriff.43
Defendants assert that the City’s level of funding the jail was not the direct cause of any
constitutional deprivations, and Plaintiff cannot prove any fact demonstrating that additional
funding from the City would have caused prison personnel to act any differently in this case.44
Accordingly, Defendants argue that the motion to dismiss should be granted and Plaintiff’s request
for leave to amend the complaint should be denied.

39

Id. at 3–4.

40

Id. at 4.

41

Id.

42

Rec. Doc. 21 at 1–2.

43

Id. at 3.

44

Id. at 3–4.

8

III. Law and Analysis
A.

Legal Standard on Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) provides that an action may be dismissed “for

failure to state a claim upon which relief can be granted.”45 A motion to dismiss for failure to state
a claim is “viewed with disfavor and is rarely granted.”46 “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that
is plausible on its face.’”47 “Factual allegations must be enough to raise a right to relief above the
speculative level.”48 A claim is facially plausible when the plaintiff has pleaded facts that allow
the court to “draw a reasonable inference that the defendant is liable for the misconduct alleged.”49
On a motion to dismiss, asserted claims are liberally construed in favor of the claimant,
and all facts pleaded are taken as true.50 However, although required to accept all “well-pleaded
facts” as true, a court is not required to accept legal conclusions as true.51 “While legal conclusions
can provide the framework of a complaint, they must be supported by factual allegations.”52
Similarly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

45

Fed. R. Civ. P. 12(b)(6).

46

Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).

47

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2008)).

48

Twombly, 550 U.S. at 556.

49

Id. at 570.

50

Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); see
also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322–23 (2007).
51

Iqbal, 556 U.S. at 677–78.

52

Id. at 679.

9

statements” will not suffice.53 The complaint need not contain detailed factual allegations, but it
must offer more than mere labels, legal conclusions, or formulaic recitations of the elements of a
cause of action.54 That is, the complaint must offer more than an “unadorned, the defendantunlawfully-harmed-me accusation.”55 From the face of the complaint, there must be enough factual
matter to raise a reasonable expectation that discovery will reveal evidence as to each element of
the asserted claims.56 If factual allegations are insufficient 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.57
B.

Analysis
In the motion to dismiss, Defendants argue that Plaintiff’s allegations relate exclusively to

the conduct of the Prison officials and medical staff at the prison, over which Defendants exercise
no control or authority as a matter of law, and therefore, Plaintiff has failed to state a claim against
Defendants upon which relief can be granted. Plaintiff argues in the complaint that Defendants,
acting as decisionmakers, acted with deliberate indifference, gross negligence, and reckless
disregard for the safety and security of the Decedent, resulting in the wrongful death of Decedent.
42 U.S.C. § 1983 provides that every “person” who, under color of any statute, ordinance,
regulation, custom, or usage of any State subjects, or “causes to be subjected,” any person to the
deprivation of any federally protected rights, privileges, or immunities shall be civilly liable to the

53

Id. at 678.

54

Id.

55

Id.

56

Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009).

57

Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 2007); Moore v. Metro. Human Serv. Dep’t, No. 09-6470,
2010 WL 1462224, at * 2 (E.D. La. Apr. 8, 2010) (Vance, J.) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)).

10

injured party. The Supreme Court held in Monell that Section 1983 “unquestionably was intended
to provide a remedy, to be broadly construed, against all forms of official violation of federally
protected rights:”58
Local governing bodies (and local officials sued in their official capacities) can . . .
be sued directly under § 1983 for monetary, declaratory, and injunctive relief in
those situations where . . . the action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance, regulation, or decision
officially adopted or promulgated by those whose edicts or acts may fairly be said
to represent official policy.59
“In addition, local governments . . . may be sued for constitutional deprivations visited
pursuant to governmental ‘custom;’” such custom need not have received “formal approval
through the government's official decision-making channels.”60
However, a municipality cannot be held liable “solely because it employs a tort-feasor—
or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior
theory.”61 According to the Fifth Circuit, “municipal liability under section 1983 requires proof of
three elements: a policymaker; an official policy; and a violation of constitutional rights whose
“moving force” is the policy or custom.”62 Furthermore, “[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 policy-making authority.”63

58

Monell, 436 U.S. at 660.

59

Id.

60

Id. at 659.

61

Id. at 691.

62

Piotrowski v. City of Houston, 237 F.3d 7, 578 (5th Cir. 2001).

63

Id. at 579 (citing Webster v. City of Houston, 735 F.2d 838, 842 (5th Cir. 1984) (en banc)).

11

Plaintiff does not allege that an official policy existed that resulted in a violation of the
constitutional

rights

of

Decedent.

Rather,

Plaintiff

claims

that

Defendants

were

“decisionmaker[s],” who acted “with deliberate indifference, gross negligence, and reckless
disregard to the safety, security, and constitutional rights of Decedent” and “maintained, enforced,
tolerated, permitted, acquiesced, and applied policies, practices, or customs and usages by:” (1)
allowing their deputies to abandon their obligations to protect the people in their direct custody
from harm; (2) having a policy, practice, or custom of intentionally suspending, or failing to
provide, medication to Decedent; (3) ignoring Decedent’s complaint for medical assistance,
thereby allowing his severe medical crises to worsen; (4) having deficient staffing, security
policies and practices, and inadequate medical treatment; (5) subjecting inmates to unreasonable
uses of force against their persons; (6) selecting, retaining, and assigning employees with
demonstrable propensities for excess force, violence, and negligence, and other misconduct; (7)
failing to train and supervise employees in how to properly administer medication and care for the
people in their custody; and (8) condoning and encouraging officers in the belief that they can
violate the rights of persons such as Decedent with impunity, and that such conduct will not
adversely affect their opportunities for promotion and other employment benefits.64
Each of Plaintiff’s factual allegations appear to relate to actions taken by prison officials
and medical personnel at the Prison. Moreover, Plaintiff fails to allege facts that, taken as true,
identify actions carried out by Defendants that would give rise to liability for Defendants. As stated
previously, a claim is facially plausible when the plaintiff has pleaded facts that allow the court to

64

Rec. Doc 1 at 5.

12

“draw a reasonable inference that the defendant is liable for the misconduct alleged.”65 To the
extent Defendants may be liable for conduct performed by prison officials and medical personnel
at the Prison, Plaintiffs have not alleged any such facts. Plaintiffs state that Defendants “applied
policies, practices, or customs” in relation to the alleged misconduct; but “mere conclusory
statements” will not suffice to state a claim.66 Plaintiff does not allege with any specificity which,
if any, policies, practices, or customs Defendants applied resulted in a violation of Decedent’s
constitutional rights, or how any such policies, practices, or customs constituted the “moving
force” of the violation. In addition, Plaintiff alleges that Defendants were decisionmakers, but does
not articulate how each Defendant is “a municipal policymaker who could be held responsible,
through actual or constructive knowledge.”67 The complaint need not contain detailed factual
allegations, but it must offer more than mere labels, legal conclusions, or formulaic recitations of
the elements of a cause of action.68 Accordingly, Plaintiff has not stated a claim pursuant to Section
1983 against Defendants in the complaint upon which relief can be granted.
Plaintiff also asserts that Defendants are liable for violating the Louisiana Civil Code
Article 2315. Article 2315 states, “Every act whatever of man that causes damage to another
obliges him by whose fault it happened to repair it,” and that “[d]amages may include loss of
consortium, service, and society, and shall be recoverable by the same respective categories of
persons who would have had a cause of action for wrongful death of an injured person.” Louisiana

65

Twombly, 550 U.S. at 570 (emphasis added).

66

Iqbal, 556 U.S. at 678.

67

Piotrowski, 237 F.3d at 578-79.

68

Iqbal, 556 U.S. at 678.

13

courts use the duty-risk analysis to determine recovery under Article 2315.69 “For liability to attach
under the duty-risk analysis, the plaintiff must prove that the conduct in question was a cause-infact of the resulting harm or damages, the defendant owed a duty of care to the plaintiff, the
requisite duty was breached by the defendant, and the risk of harm was within the scope of
protection afforded by the duty breached.”70
Plaintiff alleges that Defendant owed Decedent and Plaintiff “a duty of due care,” and “that
duty was breached in that defendants’ negligence and failure to exercise due care in dealing with
the decedent and caring for his medical needs proximately caused his death.”71 Plaintiffs further
assert that “Defendants acted with deliberate indifference to the Decedent’s medical needs.”72 As
stated previously, legal conclusions will not suffice to state a claim upon which relief can be
granted.73 Plaintiff does not allege why any or all Defendants owed a duty of care to Decedent, or
how that duty was breached by Defendant, i.e., what actions taken by Defendant constituted
negligence or deliberate indifference. Thus, Plaintiffs have failed to state a claim against
Defendants pursuant to Article 2315 upon which relief can be granted.
Last, Plaintiffs assert that Defendants are liable for assault and battery against the
Decedent. The Louisiana Supreme Court has stated, “A harmful or offensive contact with a person,
resulting from an act intended to cause the plaintiff to suffer such a contact, is a battery.”74 An

69

Brown v. City of Monroe, 48,764 (La. App. 2 Cir. 2/26/14); 135 So. 3d 792, 796 (citing Barrino v. East
Baton Rouge Parish School Bd., 96–1824 (La.App.1st Cir.06/20/97); 697 So.2d 27)).
70

Iqbal, 556 U.S. at 678.

71

Rec. Doc. 1 at 10.

72

Id.

73

Iqbal, 556 U.S. at 678.

74

Caudle v. Betts, 512 So. 2d 389, 391 (La. 1987).

14

actor is subject to liability to another for assault if the actor intends to cause and does cause the
other to anticipate an imminent, and harmful or offensive, contact with his or her person, and the
other does not effectively consent to the otherwise tortious conduct of the actor.75 Plaintiff does
not allege that any of the Defendants made harmful or offensive contact with the Decedent, or
intended and caused the Decedent to anticipate harmful or offensive contact. Furthermore,
Louisiana courts have held that “a municipality is not liable for damages sustained by a third person
because of the torts committed by its police officers while discharging their official duties.”76
Specifically, in Brown v. City of Shreveport, the Second Circuit Court of Appeal of Louisiana held
that the City of Shreveport was not liable for a battery that took place against the plaintiff while
being held in the city jail allegedly caused in part by the negligence of the jailor and police
officers.77 Accordingly, Plaintiff’s claim that Defendants assaulted and battered Decedent is not
“supported by factual allegations.”78 As, “[t]hreadbare recitals of the elements of a cause of action”
will not suffice, Plaintiffs have failed to state a claim against Defendants for assault and battery
upon which relief can be granted.79
To the extent Plaintiff asserts claims for Defendants’ conduct in violation of the
constitutional rights of “the complainant and all persons similarly situated,” Plaintiff fails to state

75

RESTATEMENT (THIRD) TORTS: INTEN. TORTS TO PERSONS § 105 (Am. Law. Inst., 2015).

76

Brown v. City of Shreveport, 129 So. 2d 540, 541 (La. Ct. App. 1961) (citing Martin v. Magee, 179 La.
913 (La. 1934); Rush v. Town of Farmerville, 156 La. 857 (La. 1924); Joliff v. City of Shreveport, 144 La. 62 (La.
1918); *542 Jones v. City of New Orleans, 143 La. 1073 (La. 1918); Taulli v. Gregory, 223 La. 195 (1953).
77

Id.

78

Iqbal, 556 U.S. at 679.

79

Id. at 678.

15

any claims upon which relief can be granted.80 As stated previously, a claim is facially plausible
when the plaintiff has pleaded facts that allow the court to “draw a reasonable inference that the
defendant is liable for the misconduct alleged.”81 Plaintiff does not assert any facts regarding the
violation of any constitutional rights held by Plaintiff (the complainant), and Plaintiff is not entitled
to assert claims on behalf of “all persons similarly situated,” for which no plausible claim against
Defendants exists.
Therefore, because the complaint does not contain sufficient factual allegations as to
Defendants’ liability for the alleged misconduct, Plaintiff has failed to assert any claims upon
which relief can be granted. However, dismissal is a harsh remedy, and the Court is cognizant of
the Fifth Circuit's instruction that a motion to dismiss under Rule 12(b)(6) “is viewed with disfavor
and is rarely granted.”82 In Plaintiff’s response, Plaintiff indicates that the “original complaint does
not fully articulate [the] theory of liability” that Plaintiff intends to pursue against Defendants,
specifically, that Defendants’ liability arises from “the City’s habitual underfunding of the jail.”
If it is apparent from the face of the complaint that there is an “insuperable” bar to relief,
the claim must be dismissed. Although Defendants argue that as a matter of law, they cannot be
held liable for merely funding the Prison, Defendants fail to cite any law in support of this
proposition.83 Defendants also fail to address the distinction, if any, between a bar against liability
arising from municipal funding of a prison alone, and liability arising from a municipality’s failure

80

Rec. Doc. 1 at 4–5.

81

Id. at 570.

82

Beanal v. Freeport–McMoran, Inc., 197 F.3d 161, 164 (5th Cir.1999).

83

Rec. Doc. 21 at 3.

16

to fund, or underfunding of, a prison. Short of granting a motion to dismiss, a court may grant a
plaintiff leave to amend her complaint.84
IV. Conclusion
Based on the foregoing, the Court has determined that Plaintiff has not stated a claim
pursuant to 42 U.S.C. § 1983 or Louisiana Civil Code Article 2315, or for assault and battery,
against Defendants. Rather than dismiss Plaintiff’s claims at this time, the Court will grant Plaintiff
leave to amend the complaint. If upon amendment, Plaintiff fails to provide sufficient factual
support for each element of each claim, upon motion by a party, the Court will dismiss the claims.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Rule 12(b)(6) Motion to Dismiss for
Failure to State a Claim85 is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff is granted leave to amend her complaint
within thirty days of this Order to cure the deficiencies noted, if possible.
NEW ORLEANS, LOUISIANA, this16th day of October, 2017.
____

_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

84

See Carroll v. Fort James Corp., 470 F.3d 1171, 1175 (5th Cir.2006) (quoting Dussouy v. Gulf Coast Inv.
Corp., 660 F.2d 594, 597–98 (5th Cir.1981)).
85

Rec. Doc. 12.

17