Perry v. Paz et al

Filing 15

ORDER AND REASONS - IT IS ORDERED that Perry's 14 motion to amend is GRANTED IN PART and DENIED IN PART. The motion is granted with respect to the claims asserted against Brian Rico, Kolby Arabie, and Dale's Towing Co. The motion is den ied in all other respects. IT IS FURTHER ORDERED that the report and recommendation 13 of the Magistrate Judge is hereby ADOPTED as the opinion of this Court. IT IS FURTHER ORDERED that the claims against the Gretna City police department and Dal e's Towing Co. are DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that all of plaintiff's remaining claims are STAYED AND ADMINISTRATIVELY CLOSED pending a final adjudication of Perry's state court proceedings. Any party may move to re-open the case within thirty days of a final adjudication in state court. Signed by Judge Lance M Africk.(bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TYRONE LEWIS PERRY

CIVIL ACTION

VERSUS

No. 16-17653

VICENTE PAZ ET AL.

SECTION I
ORDER AND REASONS

Tyrone Perry filed this lawsuit because he believes the defendants used
excessive force in the course of arresting him on June 1, 2016. He sued the Gretna
City police department and the individual officers who arrested him. After holding a
hearing, the U.S. Magistrate Judge issued a report and recommendation on March 3,
2017, recommending that Perry’s claims against the Gretna City police department
be dismissed with prejudice because a police department is not a proper defendant in
an action brought pursuant to 42 U.S.C. § 1983.

The Magistrate Judge also

recommended that Perry’s remaining claims against the individual officers be stayed
and administratively closed pending the adjudication of Perry’s state court criminal
proceedings.
Objections to the report and recommendation were due March 17, 2017. As of
this date, no objections have been filed. Accordingly, the Court adopts the reasoning
set forth in the report and recommendation as its own, and dismisses the claims
against the Gretna City police department with prejudice. The Court stays and
administratively closes the case with respect to the remaining claims until Perry’s
state court criminal charges have been fully adjudicated.

There is one additional issue the Court must address. Although Perry did not
file an objection to the report and recommendation, he has filed a motion 1 for leave
to amend his complaint. Perry seeks to amend his complaint for two reasons, each of
which the Court addresses in turn.
I.
Perry first attempts to add claims against new defendants arising out of the
incident which occurred on June 1, 2016. Perry requests leave to add police officers
Brian Rico and Kolby Arabie as defendants, as well as Dale’s Towing Co.—the
company which allegedly towed Perry’s car after he was arrested. The Court will
allow Perry to amend his complaint to include claims against these parties.
Nevertheless, the Court’s conclusion that the claims against the Gretna police
officers named in the original complaint should be stayed also holds true for the
claims against the Gretna police officers named in the amended complaint. As such,
the addition of officers Rico and Arabie to this action does not change the Court’s
decision to stay and administratively close the case.
With respect to Perry’s claim against Dale’s Towing Co., however, the Court
concludes that a dismissal is warranted. For a private citizen to be held liable under
section 1983, the plaintiff must allege that the citizen conspired with or acted in
concert with state actors. Able Sec. & Patrol, LLC. v. Louisiana, 569 F. Supp. 2d 617,
630 (E.D. La. 2008) (citing Mylett v. Jeane, 879 F.2d 1272, 1275 (5th Cir. 1989)). The
plaintiff must allege: (1) an agreement between the private and public defendants to

1

R. Doc. No. 14.
2

commit an illegal act and (2) a deprivation of constitutional rights. Cinel v. Connick,
15 F.3d 1338, 1343 (5th Cir. 1994). Because Perry does not allege that Dale’s Towing
conspired with the police to deprive him of his constitutional rights, Perry’s claims
against Dale’s Towing must be dismissed with prejudice.
II.
Perry next attempts to assert claims against the Gretna City police
department and unknown police officers relating to an alleged unlawful search of a
residence which purportedly occurred on December 21, 2016. The original complaint
made no mention of such a search. Because there is no indication that the December
21, 2016 search is in any way related to the June 1, 2016 arrest, any claims Perry
may have as a result of the search must be asserted in a separate lawsuit. As such,
the Court denies the motion for leave to amend with respect to those claims.
III.
For the foregoing reasons,
IT IS ORDERED that Perry’s motion to amend is GRANTED IN PART and
DENIED IN PART. The motion is granted with respect to the claims asserted
against Brian Rico, Kolby Arabie, and Dale’s Towing Co. The motion is denied in all
other respects.
IT IS FURTHER ORDERED that the report and recommendation 2 of the
Magistrate Judge is hereby ADOPTED as the opinion of this Court.

2

R. Doc. No. 13.
3

IT IS FURTHER ORDERED that the claims against the Gretna City police
department and Dale’s Towing Co. are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that all of plaintiff’s remaining claims are
STAYED AND ADMINISTRATIVELY CLOSED pending a final adjudication of
Perry’s state court proceedings. Any party may move to re-open the case within thirty
days of a final adjudication in state court.

New Orleans, Louisiana, March 20, 2017.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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