Carpenter et al v. Webre et al

Filing 74

ORDER AND REASONS granting 31 Motion to Dismiss Under Rule 12(b)(6) and granting 34 Motion to Dismiss for Lack of Jurisdiction and Motion to Dismiss for Failure to State a Claim, as stated herein. Signed by Judge Susie Morgan on 3/23/2018. (tsf)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DARYL CARPENTER, ET AL.,
Plaintiffs

CIVIL ACTION

VERSUS

NO. 17-808

WEBRE, ET AL.,
Defendants

SECTION: “E”
ORDER AND REASONS

Before the Court are two motions: (1) a motion to dismiss pursuant to Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6) filed by Defendants Sergeant Jeffery Prevost and
Lafourche Parish Sheriff Craig Webre (collectively the “Sheriff Defendants”), 1 and (2) a
motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by Defendants
Castex Lafourche, LP and Glenn M. Plaisance (collectively the “Castex Defendants”).2 The
motions are opposed. 3 For the reasons that follow, the Court grants both motions. As a result,
only Plaintiffs’ claims for declaratory/injunctive relief pursuant to 28 U.S.C. §§ 2201–02 and
Plaintiffs’ state law claims remain.
I.

BACKGROUND 4
On April 29, 2016, Plaintiff Daryl Carpenter, principal and sole owner of Plaintiff

Reel Screamers Guide Service, LLC (“Reel Screamers”) (collectively “Plaintiffs”), was
“guiding a family of three on a red fishing trip,” having departed from Grand Isle,
Louisiana and navigated to the Golden Pond through a series of “interconnected natural
navigable waterways.” 5 Carpenter “easily navigated [a] 24 foot charter vessel into the
R. Doc. 34.
R. Doc. 31. Plaisance Dragline and Dredging Company, Inc. (“Plaisance Dragline”) was also included in
Defendants’ motion; however, Plaintiffs voluntarily dismissed their claims against Plaisance Dragline with
prejudice on October 2, 2017. R. Docs. 60, 63.
3 R. Doc. 41.
4 The background is based on the allegations in Plaintiff’s First Amended Complaint. R. Doc. 25.
5 R. Doc. 25 at ¶¶ 15, 16.
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Golden Pond, where the crew engaged in fishing with hook and line.” 6 While Carpenter
was guiding the family of three, Plaisance, who manages the land upon which Golden
Pond is situated, approached Carpenter by boat, advising him that he and his passengers
“were trespassing on private property and had to leave.” 7 Carpenter “begrudgingly” left
Golden Pond after this encounter. 8
On June 6, 2016, Carpenter was driving away from his home in Grand Isle, Louisiana
when “his lane of travel was cut off to the front by an unidentified Grand Isle policeman in
a marked squad car.” 9 Carpenter stopped his vehicle, “at which time the Grand Isle
Policeman signaled to a Lafourche Parish Sheriff’s vehicle, which pulled up behind
Plaintiff’s vehicle, blocking him from the rear.” 10 Sergeant Provost and Deputy Drake Duet
approached Carpenter and explained that Plaisance “was pursuing a complaint against
Plaintiff for trespassing.” 11 Sergeant Provost informed Carpenter “that this would be his
‘first and final official warning,’ [and] that if he [were] found on Mr. Plaisance’s property
again, he would be arrested.” 12 Carpenter asked Sergeant Provost “the official location of
Mr. Plaisance’s property,” to which Sergeant Provost responded by stating Carpenter
“would be arrested for trespassing if found on ‘any waters that the State Lands Map did not
show as public.’” 13 According to Plaintiffs, this admonishment “served to prevent Plaintiff’s
lawful use of numerous natural navigable waterways, including but not limited to the
Golden Pond” 14 because the State Lands Map’s disclaimer reads in part: “This information

Id. at ¶ 16.
Id. at ¶ 18, 19.
8 Id. at ¶ 20.
9 Id. at ¶ 30.
10 Id. at ¶ 31.
11 Id. at ¶ 34.
12 Id. at ¶ 35.
13 Id. at ¶ 36.
14 Id. at ¶ 40(D).
6
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is intended to serve only as an initial reference for research and does not purport to provide
evidence of legal title to property.” 15 As a result, Plaintiffs contend they are unable to
determine which waters are public and which are private.
On January 31, 2017, Plaintiffs filed suit against the Sheriff Defendants and Castex
Defendants. 16 Plaintiffs filed an amended complaint on May 16, 2017. 17 On November 8,
2017, at the Court’s direction, Plaintiffs filed a supplemental memorandum referencing the
allegations in their amended complaint and clarifying the causes of action being asserted
against each Defendant and pointing out the factual allegations supporting each claim. 18
By reference to their amended complaint, Plaintiffs in their supplemental
memorandum clarified that their claims against Sergeant Prevost and Sheriff Webre are
brought in both their official and individual capacities based on: (1) Carpenter’s June 6,
2016 encounter with Sergeant Prevost, Deputy Duet, and “an unidentified Grand Isle
Policeman,” during which Sergeant Prevost pulled Carpenter over, “physically block[ing]”
his “ingress and egress” 19; (2) Sergeant Prevost’s statement to Carpenter during the June
6, 2016 encounter that Plaisance “was pursuing a complaint against [him] for
trespassing,” 20 and warning Carpenter that he “would be arrested for trespassing if found
on ‘any waters that the State Lands Map did not show as public,’” thereby preventing him
from going on public land; 21 and (3) the Sheriff Defendants’ conduct that, “coupled with
the actions and inactions of Sheriff Craig Webre in other similar cases and matters[,
which] evidence a custom, culture, and practice within the Lafourche Parish Sheriff’s

Id. at ¶ 38.
R. Doc. 1.
17 R. Doc. 25.
18 R. Doc. 65.
19 R. Doc. 25 at ¶ 43; R. Doc. 65 at 7.
20 R. Doc. 25 at ¶ 34; R. Doc. 65 at ¶ 34.
21 R. Doc. 25 at ¶ 36; R. Doc. 65 at 6.
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Department of discrimination against commercial fishermen in favor of landowners and
water bottoms claimants.” 22
Plaintiffs’ claims against the Castex Defendants are based on Castex Lafourche, LP’s
authorizing its agent, Plaisance, to inform Plaintiffs they were trespassing and “pursuing a
complaint against” them, 23 but permitting others to use the waterways, 24 “thus creating,
propagating, and promoting an unfair competitive edge against Plaintiffs.”25
Finally, Plaintiffs complain Plaisance also violated their constitutional rights by
telling Plaintiffs to leave the Castex property and subsequently “pursuing a complaint.” 26
According to Plaintiffs’ amended complaint and supplemental memorandum, Plaisance
“conspired [with the Sheriff Defendants] under color of state law to deprive Plaintiffs of
their rights, privileges and immunities.” 27
II.

CAUSES OF ACTION
A. The Sheriff Defendants
Plaintiffs bring both individual and official capacity claims against the Sheriff

Defendants arising under federal and state law:
(1) 42 U.S.C. § 1983, 28 specifically “Plaintiffs’ Fourth Amendment
right to be free from unreasonable searches and seizures, his Fifth
Amendment right to due process, and his Fourteenth Amendment
right to equal protection;” 29
(2) 15 U.S.C §§ 1, 13, 15 (anti-trust and unfair competition claims); 30

R. Doc. 25 at ¶ 52(A); R. Doc. 65 at 10.
R. Doc. 25 at 34 & ¶ 96; R. Doc. 65 at 5.
24 R. Doc. 25 at ¶ 97.
25 Id.
26 R. Doc. 25 at ¶ 34; R. Doc. 65 at 5.
27 R. Doc. 25 at ¶¶ 55, 56; see R. Doc. 65 at 9.
28 R. Doc. 25 at ¶ 3; R. Doc. 65 at 5.
29 R. Doc. 65 at 6; see R. Doc. 25 at ¶ 71(T)–(W).
30 R. Doc. 25 at ¶ 3; R. Doc. 65 at 1–3. In their complaint, Plaintiffs also bring a 42 U.S.C. § 1985 claim. R.
Doc. 25 at ¶ 21. Based on the factual allegations made in their amended complaint, this statute plainly does
not apply in this case, and the Court does not consider this cause of action. See Cain v. City of New Orleans,
No. 15-4479, 2016 WL 2849498, at *5–6 (E.D. La. May 13, 2016) (“The Court disregards bare assertions of
collective responsibility, unsupported by concrete factual allegations.”).
22
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(3) “general maritime negligence and intentional tort;” 31
(4) “Louisiana law negligence/intentional tort;” 32 and
(5) the Louisiana Constitution, 33 “specifically violations of rights
secured to him under Article I, Sections 2 (Due process), 3 (Right to
Dignity), 4 (Right to Property), 5 (Right to Privacy), 13 (Rights of the
Accused), and 27 (Freedom to Hunt, Fish, and Trap).” 34
B. The Castex Defendants
Plaintiffs’ claims against both Castex Defendants arise under both federal and state law:
(1) “general maritime negligence and intentional tort;” 35
(2) 15 U.S.C §§ 1, 13, 15 (anti-trust and unfair competition claims); 36 and
(3) “Louisiana law negligence/intentional tort.” 37
Plaintiffs’ additional causes of action asserted only against Plaisance arise under
Federal and state law:
(1) 42 U.S.C. § 1983; and
(2) the Louisiana Constitution. 38
C. Declaratory/Equitable Relief Against All Defendants
Plaintiffs also seek declaratory/equitable relief against all Defendants under 28 U.S.C.
§§ 2201–02. 39 Specifically, Plaintiffs seek:
(1) “a declaration of the boundary between the public bed of the
Golden Pond and other similarly situated navigable waters at
issue in this litigation and the private property of CASTEX”; 40 or,
in the alternative,
(2) “a declaration of their Federal and Louisiana State law rights to
navigate, conduct commercial fishing operations, and otherwise
engage in interstate maritime commerce upon the Golden Pond
and other similarly situated navigable waters at issue in this
litigation of which CASTEX asserts ownership.” 41
R. Doc. 25 at 32; R. Doc. 65 at 9.
R. Doc. 25 at 35; R. Doc. 65 at 15.
33 R. Doc. 25 at ¶¶ 6, 75; R. Doc. 65 at 7.
34 R. Doc. 25 at ¶ 55; R. Doc. 65 at 5, 7.
35 R. Doc. 25 at 32; R. Doc. 65 at 9.
36 R. Doc. 25 at ¶ 3; R. Doc. 65 at 1–3.
37 R. Doc. 25 at 35; R. Doc. 65 at 10–11.
38 R. Doc. 25 at ¶¶ 59, 69, 75; R. Doc. 65 at 8–9.
39 R. Doc. 25 at ¶¶ 107, 108.
40 Id. at 107.
41 Id. at 108.
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III.

LEGAL STANDARD

A. Dismissal under Rule 12(b)(1)
“Federal courts are courts of limited jurisdiction; without jurisdiction conferred by
statute, they lack the power to adjudicate claims.” 42 A motion to dismiss under Federal
Rules of Civil Procedure 12(b)(1) challenges a federal court’s subject-matter jurisdiction.43
Under Rule 12(b)(1), “[a] case is properly dismissed for lack of subject matter jurisdiction
when the court lacks the statutory or constitutional power to adjudicate the case.” 44 “Lack
of subject-matter jurisdiction may be found in the complaint alone, the complaint
supplemented by the undisputed facts as evidenced in the record, or the complaint
supplemented by the undisputed facts plus the court’s resolution of the disputed facts.” 45
Thus, in examining a Rule 12(b)(1) motion, the district court is empowered to consider
factual matters that may be in dispute. 46 “When, as here, grounds for dismissal may exist
under both Rule 12(b)(1) and Rule 12(b)(6), the Court should, if necessary, dismiss only
under the former without reaching the question of failure to state a claim.” 47
B. Dismissal under Rule 12(b)(6)
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court may dismiss
a complaint, or any part of it, for failure to state a claim upon which relief may be granted
if the plaintiff has not set forth factual allegations in support of his claim that would entitle

42 In re FEMA Trailer Formaldehyde Products Liab. Litig. (Mississippi Plaintiffs), 668 F.3d 281, 286 (5th
Cir. 2012).
43 See FED. R. CIV. P. 12(b)(1).
44 Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (internal
quotation marks and citation omitted).
45 In re FEMA, 668 F.3d at 287.
46 Crane v. Johnson, 783 F.3d 244, 251 n.21 (5th Cir. 2015); Williamson v. Tucker, 645 F.2d 404, 413 (5th
Cir. 1981).
47 Valdery v. Louisiana Workforce Comm’n, No. 15-01547, 2015 WL 5307390, at *1 (E.D. La. Sept. 10,
2015).

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him to relief. 48 “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 49
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” 50 However, the court does not accept as true legal conclusions or mere
conclusory statements, 51 and “conclusory allegations or legal conclusions masquerading
as factual conclusions will not suffice to prevent a motion to dismiss.” 52 “[T]hreadbare
recitals of elements of a cause of action, supported by mere conclusory statements” or
“naked assertion[s] devoid of further factual enhancement” are not sufficient. 53
“Factual allegations must be enough to raise a right to relief above the speculative
level.” 54 “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—that
the pleader is entitled to relief.” 55
IV.

THE SHERIFF DEFENDANTS’ 12(B)(1) MOTION
The Sheriff Defendants contend Carpenter’s § 1983 claims under the Fourth, Fifth, and

Fourteenth Amendments, insofar as they are based on the threat of future arrest, must be
dismissed for lack of standing.56 Because Carpenter has not been arrested and may continue

48 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
2007).
49 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
50 Id.
51 Id.
52 S. Christian Leadership Conference v. Supreme Court of the State of La., 252 F.3d 781, 786 (5th Cir.
2001) (citing Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)).
53 Iqbal, 556 U.S. at 663, 678 (citations omitted).
54 Twombly, 550 U.S. at 555.
55 Id. (quoting FED. R. CIV. P. 8(a)(2)).
56 At best, Plaintiffs contend the Sheriff Defendants’ threat of arrest for future trespass violated Carpenter’s
“Fourth Amendment right to be free from unreasonable searches and seizures, his Fifth Amendment right
to due process, and his Fourteenth Amendment right to equal protection, particularly from state action
aimed at abridging his due process rights.” R. Doc. 65 at 5–6; see R. Doc. 25 at ¶¶ 61. 63, 66, 67, 71(A)–(W).

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to fish on other waterways that are public, the Sheriff Defendants contend Carpenter has not
suffered a redressable injury-in-fact and his claims are not ripe for adjudication.57
Standing and ripeness are two doctrines of justiciability that assure federal courts
decide only Article III cases or controversies. 58 The “irreducible constitutional minimum”
of standing consists of three elements. 59 “To establish standing, a plaintiff must show
that: (1) he has suffered, or imminently will suffer, a concrete and particularized injuryin-fact; (2) the injury is fairly traceable to the defendant’s conduct; and (3) a favorable
judgment is likely to redress the injury.” 60 “Where, as here, a case is at the pleading state,
the plaintiff must ‘clearly . . . allege facts demonstrating’ each element.”61
In their motion to dismiss pursuant to Rule 12(b)(1), the Sheriff Defendants argue
Carpenter lacks standing to bring any claims based on the threat of future arrest, as
Sergeant Prevost’s threat does not constitute a concrete injury-in-fact. The Sheriff
Defendants point to two cases, Kelly v. Herbst 62 and Blankenship v. Buenger, 63 in
support of their positions. However, neither Kelly nor Blankenship apply to the facts of
this case. In both of those cases, the plaintiffs brought pre-enforcement actions
challenging the constitutionality of the statutes they believed would be enforced against
them. 64
Under the first prong of a court’s constitutional standing analysis, a plaintiff must
show that he “‘has sustained or is immediately in danger of sustaining some direct injury’ as

R. Doc. 34-1 at 4.
LeClerc v. Webb, 419 F.3d 405, 413 (5th Cir. 2005).
59 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).
60 Justice v. Hosemann, 771 F.3d 285, 291 (5th Cir. 2014).
61 Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)).
62 No. 12-27, 2012 WL 3647428 (D. Mont. May 10, 2012).
63 653 F. App’x 330 (5th Cir. 2016).
64 See id. at 332. The Fifth Circuit noted that “Blankenship lacks standing. Our holding rests primarily on the
fact that § 30.05 has not yet been applied to Blankenship.” Id. at 343; see Kelly, 2012 WL 3647428, at *2–3.
57

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the result of the challenged official conduct and the injury or threat of injury [is] both ‘real
and immediate,’ not ‘conjectural or hypothetical.’”65 In a suit challenging the constitutionality
of a statute pre-enforcement, a plaintiff must prove his future harm is “real and immediate”
by demonstrating that (1) he has a concrete plan to violate the law in question; (2) he has
received a real threat of imminent prosecution from the state; and (3) that the statute at issue
has previously been enforced.66 Such an analysis, however, applies only when a plaintiff sues
for prospective relief by way of an injunction or declaratory judgment. 67
In this case, Plaintiffs seek prospective relief in the form of (1) “a declaration of the
boundary between the public bed of the Golden Pond and other similarly situated
navigable waters at issue in this litigation and the private property of CASTEX”; 68 or, in
the alternative, (2) “a declaration of their Federal and Louisiana State law rights to
navigate, conduct commercial fishing operations, and otherwise engage in interstate
maritime commerce upon the Golden Pond and other similarly situated navigable waters
at issue in this litigation of which CASTEX asserts ownership.” 69 The declaratory
judgments they seek are not based on the alleged threat of arrest or the constitutionality
of any statute they believe might be enforced against them. As a result, neither Kelly nor
Blankenship apply. Instead, the requirements for standing on Plaintiffs’ § 1983 claims are
that they sufficiently allege that (1) they have suffered a concrete and particularized

City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (emphasis added and citations omitted); see Allen
v. Wright, 468 U.S. 737, 751 (184) (“The injury alleged must be . . . distinct and palpable . . . and not abstract
or conjectural or hypothetical.”) (internal citations and quotations omitted).
66 Susan B. Anthony List, 134 S. Ct. at 2342; Blankenship, 653 F. App’x at 330; see also Maldonado v.
Morales, 556 F.3d 1037, 1044 (9th Cir. 2009).
67 See Hightower v. City of Grand Rapids, 256 F. Supp. 3d 742, 748 (W.D. Mich. 2017 (“While a plaintiff
might have standing to seek damages for past injuries, that plaintiff must demonstrate separate standing
when seeking declaratory or injunctive relief.”); see also Roark & Hardee LP v. City of Austin, 522 F.3d
533, 542–43 (5th Cir. 2008); Higgins v. Tex. Dep’t of Health Servs., 801 F. Supp. 2d 541, 552 (W.D. Tex.
2011).
68 R. Doc. 25 at ¶ 107.
69 Id. at ¶ 108.
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injury-in-fact; (2) the injury is fairly traceable to Defendants’ conduct; and (3) a favorable
judgment from this Court is likely to redress the alleged injury. 70 Plaintiffs have satisfied
these requirements and have standing to bring their § 1983 claims. 71
V.

THE SHERIFF DEFENDANTS’ 12(B)(6) MOTION
C. Plaintiffs’ Section 1983 Claims Against the Sheriff Defendants
Plaintiffs’ § 1983 claims against the Sheriff Defendants stem from alleged

violations of Plaintiffs’ Fourth, Fifth, and Fourteenth Amendment rights based on (a)
Carpenter’s June 6, 2016 encounter with Sergeant Prevost, Deputy Duet, and “an
unidentified Grand Isle Policeman,” 72 during which Carpenter’s “ingress and egress” was
“physically blocked” 73; (b) Sergeant Prevost’s statements that deprived Plaintiffs of their
right to go on public lands, thereby restraining their ability to earn a living; (c) Sheriff
Webre’s failure to respond to Plaintiffs’ letters; 74 and (d) “the actions and inactions of
Sheriff Craig Webre in other similar cases and matters,” which Plaintiffs contend
“evidence a custom, culture, and practice within the Lafourche Parish Sheriff’s
Department of discrimination against commercial fishermen in favor of landowners and
water bottoms claimants.” 75 Plaintiffs bring their § 1983 claims against the Sheriff
Defendants in their official and individual capacities.
1. Plaintiffs’ Official Capacity Claims Against Sergeant Prevost
With respect to Plaintiffs’ § 1983 claims against Sergeant Prevost in his official
capacity, it is well settled that a suit against a municipal official in his or her official capacity

See Justice, 771 F.3d at 291.
To the extent Plaintiffs make factual allegations concerning the threat of arrest in this case, those
allegations are not material to the causes of action asserted under § 1983.
72 R. Doc. 25 at ¶¶ 3, 30, 43; R. Doc. 65 at 5, 7.
73 R. Doc. 25 at ¶ 43; R. Doc. 65 at 7.
74 R. Doc. 25 at ¶¶ 44–48; R. Doc. 65 at 7.
75 R. Doc. 25 at ¶¶ 52, 52A, 60, 65K; R. Doc. 65 at 8–9.
70
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is simply another way of alleging municipal liability. 76 Louisiana grants no capacity to be
sued to any parish sheriff’s office. The Sheriff in his official capacity is the appropriate
governmental entity responsible for any violations committed by his office. 77 When, as in
this case, the Sheriff is a defendant in the litigation, claims against specific deputies in their
official capacities are redundant, and it is appropriate to dismiss them. 78 As a result, the
Court dismisses Plaintiffs’ claims against Sergeant Prevost in his official capacity. 79
2. Plaintiffs’ Individual Capacity Claims Against Sergeant Prevost
Plaintiffs allege Sergeant Prevost violated their Fifth Amendment right to due
process and Fourth Amendment right to be free from unreasonable searches and
seizures. 80 Sergeant Prevost contends he is entitled to qualified immunity as to each of
these claims.
The qualified immunity defense serves to shield government officials, sued in their
individual capacities and performing discretionary functions, “from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” 81 “A court
required to rule upon the qualified immunity issue must [first] consider” whether, taken
in the light most favorable to the plaintiff, “the facts alleged show the officer’s conduct
violated a constitutional right.” 82 “If no constitutional right would have been violated
were the allegations established, there is no necessity for further inquiries concerning
Monell v. New York City Dept. of Social Servs, 436 U.S. 658 (1978).
Winfrey v. San Jacinto Cty., 481 F. App’x 969, 976 (5th Cir. 2012); Jenkins v. Jefferson Parish Sheriff’s
Office, 402 So. 2d 669, 671 (La. 1981).
78 Castro Romero v. Becken, 256 F.3d 349, 355 (5th Cir. 2001).
79 See id.
80 Plaintiffs also assert a Fourteenth Amendment Equal Protection claim against Sergeant Prevost; however,
Plaintiffs make no factual allegations against Sergeant Prevost to substantiate this claim. As a result, the
Court dismisses this claim against Sergeant Prevost for failure to state a claim. See Iqbal, 556 U.S. at 678;
Twombly, 550 U.S. at 570.
81 Kinney v. Weaver, 367 F.3d 337, 349 (5th Cir. 2004).
82 Saucier v. Katz, 533 U.S. 194, 201 (2001).
76
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qualified immunity.” 83 If the complaint makes out a constitutional violation, the Court
then must determine whether that constitutional right was clearly established at the time
the violation occurred. 84 To be “clearly established” for the purpose of qualified
immunity, “[t]he contours of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” 85
When considering a qualified immunity defense raised in the context of a Rule
12(b)(6) motion to dismiss, the Court must determine whether “the plaintiff’s pleadings
assert facts which, if true, would overcome the defense of qualified immunity.” 86 “Thus, a
plaintiff seeking to overcome qualified immunity must plead specific facts that both allow
the court to draw the reasonable inference that the defendant is liable for the harm he has
alleged and that defeat a qualified immunity defense with equal specificity.” 87
Qualified immunity attaches when an official’s conduct “‘does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known.’” 88 For a right to be clearly established, “‘existing precedent must have placed the
statutory or constitutional question beyond debate.’” 89 “[T]he contours of the right must
be sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” 90 “Officials should receive the protection of qualified immunity
‘unless the law is clear in the more particularized sense that reasonable officials should be

Id.
Id.
85 Anderson v. Creighton, 483 U.S. 635, 640 (1987).
86 Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012); Jordan v. City of New Orleans, No. 15-1922, 2016
WL 633666, at *2 (E.D. La. Feb. 17, 2016).
87 Backe, 691 F.3d at 648; see also Babb v. Dorman, 33 F.3d 472, 475 n.5 (5th Cir. 1994) (“To survive a
motion to dismiss in cases where the qualified immunity defense is raised, a plaintiff must state facts, which
if proven, would defeat the defense.”); Jackson v. City of Beaumont Police Dep’t, 958 F.2d 616, 620 (5th
Cir. 1992).
88 White v. Pauly, 137 S. Ct. 548, 549 (2017) (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per
curiam)).
89 Id.
90 Wernecke v. Garcia, 591 F.3d 386, 392 (5th Cir. 2009) (quoting Anderson, 483 U.S. at 640).
83

84

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put on notice that their conduct is unlawful.’” 91 “In other words, immunity protects ‘all
but the plainly incompetent or those who knowingly violate the law.’” 92 “The court’s focus,
for purposes of the ‘clearly established’ analysis should be on ‘fair warning’: qualified
immunity is unavailable ‘despite notable factual distinctions between the precedents
relied on and the cases then before the Court, so long as the prior decisions gave
reasonable warning that the conduct then at issue violated constitutional rights.’” 93
a. Fifth and Fourteenth Amendment Substantive Due Process
Claim
Carpenter alleges Sergeant Prevost violated his Fifth Amendment right to due
process when he “physically blocked” Carpenter’s “pathway, ingress and egress” 94 and
“curtly responded” that Carpenter would be considered trespassing “if found on ‘any
waters that the State Lands Map did not show as public’” after Carpenter “inquired as to
the official location of Mr. Plaisance’s property” on June 6, 2016. 95
The Fifth Amendment’s “Due Process Clause provides that certain substantive
rights—life, liberty, and property—cannot be deprived except pursuant to constitutionally
adequate procedures.” 96 This constitutional provision, on its own, is enforceable only
against the Federal Government. 97 Thus, the Court assumes Carpenter asserts his due
process claim through the Fourteenth Amendment. 98
Carpenter’s first due process allegation is that Sergeant Prevost’s blocking his
movement on June 6, 2016 violated Carpenter’s constitutionally protected liberty interest
Id. at 393 (quoting Kinney, 367 F.3d at 350).
White, 137 S. Ct. at 549.
93 Wernecke, 591 F.3d at 392 (5th Cir. 2009) (quoting Hope v. Pelzer, 536 U.S. 730, 740 (2002)).
94 R. Doc. 25 at ¶ 43; R. Doc. 65 at 7.
95 R. Doc. 25 at ¶ 36; R. Doc. 65 at 5–6.
96 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985).
97 Palko v. Connecticut, 302 U.S. 319, 324–25 (1937), overruled on other grounds by Benton v. Maryland,
395 U.S. 784 (1969).
98 Id.
91

92

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to be free from unreasonable seizures. 99 “[W]here a particular Amendment provides an
explicit textual source of constitutional protection against a particular sort of government
behavior,” in this case the Fourth Amendment, “that Amendment, not the more
generalized notion of substantive due process, must be the guide for analyzing these
claims.” 100 Because in this case Carpenter’s substantive due process claim with respect to
this conduct fully overlaps with his Fourth Amendment unreasonable seizure claim, his
due process claim based on this conduct must be dismissed. 101
Carpenter’s second due process allegation is that Sergeant Prevost deprived
Carpenter of his constitutionally protected liberty interest to remain in a public place by
informing him he would be considered trespassing should he be found on property
marked as private on the State Lands Map. The principle that an individual possesses a
constitutionally protected liberty interest to remain in a public place is clearly
established. 102 For example, in City of Chicago v. Morales, the U.S. Supreme Court
explained that “the freedom to loiter for innocent purposes is part of the ‘liberty’ protected
by the Due Process Clause of the Fourteenth Amendment.” 103 “Indeed, it is apparent that
an individual’s decision to remain in a public place of his choice is as much a part of his
liberty as the freedom of movement inside frontiers that is ‘a part of our heritage.’” 104
Each of the liberty interests articulated by the U.S. Supreme Court emphasizes the
right to remain in a public place. This right plainly does not extend to private property. 105
The Court assumes Carpenter alleges Sergeant Prevost’s conduct deprived him of his liberty, as Carpenter
clearly does not allege he was deprived of life or property.
100 Cty. Of Sacramento v. Lewis, 523 U.S. 833, 842 (1998) (citation omitted).
101 Id.; see also Willis v. Town of Marshall, 426 F.3d 251, 266 (4th Cir. 2005).
102 See City of Chicago v. Morales, 527 U.S. 41, 54 (1999); Williams v. Fears, 179 U.S. 270, 274 (1900);
Papachristou v. Jacksonville, 405 U.S. 156, 164 (1972); Shuttlesworth v. Birmingham, 382 U.S. 87, 90
(1965).
103 City of Chicago, 527 U.S. at 53.
104 Id. at 54 (quoting Kent v. Dulles, 357 U.S. 116, 126 (1958)).
105 See, e.g., State in the Interest of J.A.V., 558 So. 2d at 215 (holding that La. R. S. 14:63.3, which prohibits
trespassing, is not unconstitutionally vague).
99

14

In this case, Carpenter does not make a procedural due process claim that he was removed
from a public place without due process; rather he makes a substantive due process claim
stemming from his being told he may not trespass on lands marked as private on the State
Lands Map. At base, Carpenter’s complaint is that, because of the State Lands Map’s
disclaimer, it is possible that some areas marked as “private” are actually “public” and,
therefore, Sergeant Prevost’s warning deprived Carpenter of his constitutionally
protected liberty interest to travel to a public place.
In a situation in which the officer has the opportunity to consider the potential
consequences of his or her actions, 106 as in this case, to state a claim for relief under the
Fourteenth Amendment’s substantive due process clause, a plaintiff must allege the officer
acted with deliberate indifference. 107 The deliberate indifference standard requires an
officer’s conscious disregard of a “risk that a violation of a particular constitutional right . .
. will follow [his or her] decision.” 108 Stated otherwise, to overcome a motion to dismiss, a
plaintiff must allege that the officer understood the potential consequences of his or her
actions, but nevertheless made the “‘conscious’ choice to endanger [the plaintiff’s]
constitutional rights.” 109 This is because “[w]hen such extended opportunities to do better
are teamed with protracted failure even to care, indifference is truly shocking.” 110

Such as, for example, an officer’s decisions made during a high speed chase. See Lewis, 523 U.S. at 853
(distinguishing situations where public officers have the “time to make unhurried judgments” from
situations where “unforeseen circumstances demand an officer’s instant judgment.”).
107 Id.
108 Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 411 (1997).
109 Mesa v. Prejean, 543 F.3d 264, 274 (5th Cir. 2008) (quoting Snyder v. Trepagnier, 142 F.3d 791, 799
(5th Cir. 1998)).
110 Lewis, 523 U.S. at 853 (“To recognize a substantive due process violation in these circumstances when
only midlevel fault has been shown would be to forget that liability for deliberate indifference to inmate
welfare rests upon the luxury enjoyed by prison officials of having time to make unhurried judgments, upon
the chance for repeated reflection, largely uncomplicated by the pulls of competing obligations. When such
extended opportunities to do better are teamed with protracted failure even to care, indifference is truly
shocking. But when unforeseen circumstances demand an officer’s instant judgment, even precipitate
recklessness fails to inch close enough to harmful purpose to spark the shock that implicates ‘the large
concerns of the governors and the governed.’” (quoting Daniels v. Williams, 474 U.S. 327, 332 (1986))).
106

15

“In the context of law enforcement, the requisite conduct proscribed by the
substantive due process clause has been described as that which ‘shocks the conscience’
when the conduct is ‘brutal and offensive to human dignity’ and is among the ‘most
egregious official conduct.’” 111 Most cases applying this standard have involved allegations
of egregious conduct that do not otherwise fit the mold of a claim falling under a more
specific constitutional right. 112 For example, in Checki v. Webb, the Fifth Circuit explained
that “where a police officer uses a police vehicle to terrorize a civilian, and he has done so
with malicious abuse of official power shocking to the conscience, a court may conclude
that the officers have crossed the ‘constitutional line,’” thereby violating that civilian’s
Fourteenth Amendment right to due process. 113 Similarly, the Eighth Circuit in Rogers v.
City of Little Rock found the case of an officer who raped a woman in her home after
stopping her for a traffic violation did “not fit the mold of a typical fourth amendment
search and seizure case,” but rather violated the victim’s “due process right to be free from
physical abuse or sexual assault by state actors.” 114 At bottom, in each case in which a due
process violation was found, there was “stunning evidence of arbitrariness and caprice
that extend[ed] beyond mere violations of state law, even violations resulting from bad
faith to something more egregious and more extreme.” 115

Vicknair v. La. Dep’t of Wildlife & Fisheries, No. 6:11–0184, 2013 WL 1180834, at *14 (W.D. La. Jan. 28,
2013) (quoting United States v. Fernandez, 559 F.3d 303, 330 (5th Cir. 2009)).
112 See, e.g., Shillingford v. Holmes, 634 F.2d 263, 264–65 (5th Cir. 1981) (police officer intentionally struck
tourist because he was photographing the officer and fellow officers apprehending a boy on the street during
a Mardi Gras parade) (noting that, although the Fourth Amendment guarantees “the right of the people to
be secure in their persons,” “[a] law enforcement officer’s infliction of personal injury on a person by the
application of undue force may deprive the victim of liberty without due process of law”), abrogated on
other grounds by Valencia v. Wiggins, 981 F.2d 1440 (5th Cir. 1993).
113 785 F.2d 534, 538 (5th Cir. 1986); see also Neal ex rel. Neal v. Fulton Cnty. Bd. of Educ., 229 F.3d 1069,
1071, 1075–76 (11th Cir. 2000) (student blinded in one eye when a coach intentionally hit him in the head
with a metal weight); Hemphill v. Schott, 141 F.3d 412, 418–19 (2d Cir. 1998) (police officer provided
assistance to a third party in shooting the plaintiff).
114 152 F.3d 790, 797 (8th Cir. 1998).
115 Doe v. Covington Cty. Sch. Dist., 675 F.3d 849, 868 (5th Cir. 2012) (citing J.R. v. Gloria, 593 F.3d 73, 80
(1st Cir. 2010)).
111

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At minimum, Carpenter must allege facts sufficient for the Court to infer Sergeant
Prevost acted with deliberate indifference to the potential effects of his conduct on
Carpenter’s constitutional rights. 116 In this case, Carpenter alleges the Sheriff Defendants
violated his right to substantive due process when Sergeant Prevost told Carpenter not to
trespass on lands marked as private on the State Lands Map. The Court finds Sergeant
Prevost did not act with deliberate indifference when he informed Carpenter that he
would be considered trespassing if found on private lands, as his alleged conduct does not
“shock[] the conscience,” is not “brutal and offensive to human dignity,” and is not
“among the ‘most egregious official conduct.’” 117 At best, Sergeant Prevost’s actions
evidence a “lack of due care,” which is not sufficient to state a due process claim.118
Carpenter’s Fourteenth Amendment due process claim based on this conduct is dismissed.
b. Fourth Amendment Seizure Claim
Carpenter next alleges Sergeant Prevost violated his Fourth Amendment right to
be free from unreasonable searches and seizures when he pulled Carpenter over on June
6, 2016, “physically block[ing]” Carpenter’s “pathway, ingress and egress.” 119 The Fourth
Amendment protects individuals from unreasonable searches and seizures. 120 “Traffic

116 Farmer v. Brennan, 511 U.S. 825, 837, 842–43 (1994) (observing that deliberate indifference can be
inferred merely from the obviousness of the risk, such as when prior incidents are pervasive or welldocumented and circumstances suggest that the defendant was aware of them); cf. Ball v. LeBlanc, 792
F.3d 84, 594–95 (holding that the defendants were aware of the risk posed by high temperatures even
though they argued no inmate had ever suffered a heat-related incident at the subject facility).
117 Fernandez, 559 F.3d at 330.
118 Davidson v. Cannon, 474 U.S. 344, 348 (1986) (noting “the protections of the Due Process Clause,
whether procedural or substantive, are just not triggered by lack of due care”). To the extent Carpenter
alleges a violation of his right to procedural due process, Louisiana’s trespass statute “requires a reasonably
contemporaneous or written request to leave as an indispensable element of the offense.” State v. Johnson,
381 So. 2d 498, 500 (La. 1980). Thus, prior to being arrested for trespass, if ever, Carpenter would first
receive a warning that he was in fact trespassing, the State Lands Map’s disclaimer notwithstanding.
119 R. Doc. 25 at ¶ 43; R. Doc. 65 at 7.
120 See U.S. CONST. amend. IV.

17

stops are considered seizures within the meaning of the Fourth Amendment.” 121 For the
traffic stop to be justified at its inception, an officer must possess “an objectively
reasonable suspicion that some sort of illegal activity . . . occurred, or is about to occur,
before stopping the vehicle.” 122 “[R]easonable suspicion exists when the officer can point
to specific and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant the . . . seizure.” 123 To determine whether the seizure was
reasonable, courts consider “the gravity of the public concerns served by the seizure, the
degree to which the seizure advances the public interest, and the severity of the
interference with individual liberty.” 124
There are exceptions to the general rule that an officer must first have “an
objectively reasonable suspicion that some sort of illegal activity . . . occurred, or is about
to occur, before stopping the vehicle.” 125 As the U.S. Supreme Court in Illinois v. Lidster
explained, the suspicionless stop of an automobile does not require a court to apply a “rule
of automatic unconstitutionality,” as “the fact that such stops lacks individualized
suspicion cannot by itself determine the constitutional outcome.” 126 In the context of
checkpoints, for example, “brief, suspicionless seizures at highway checkpoints for the
purposes of combating drunk driving and intercepting illegal immigrants” do not violate
the Fourth Amendment. 127

121 United States v. Banuelos–Romero, 597 F.3d 763, 766 (5th Cir. 2010) (citing United States v. Grant, 349
F.3d 192, 196 (5th Cir. 2003) (second citation omitted)).
122 United States v. Lopez–Moreno, 420 F.3d 420, 430 (5th Cir. 2005) (citation omitted).
123 Id. (citing United States v. Santiago, 310 F.3d 336, 340 (5th Cir. 2002)).
124 Illinois v. Lidster, 540 U.S. 419, 427 (2004) (citing Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 450–
55 (1990) (citation omitted)); see also United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc).
125 Lopez–Moreno, 420 F.3d at 430 (citation omitted).
126 540 U.S. 419, 424 (2004).
127 City of Indianapolis v. Edmond, 531 U.S. 32, 34 (2000).

18

The legality of a suspicionless seizure depends on whether the seizure is premised
on specific “highway safety interests [or] the general interest in crime control.” 128 In
Michigan State Police Department v. Sitz, 129 the U.S. Supreme Court held that because
the checkpoint in question “was clearly aimed at reducing the immediate hazard posed by
the presence of drunk drivers on the highways, and there was an obvious connection
between the imperative of highway safety and the law enforcement practice at issue,” the
Michigan Highway Patrol’s custom of conducting suspicionless stops on the highway did
not violate the Constitution. 130 In contrast, in Delaware v. Prouse 131 the Court invalidated
“a discretionary, suspicionless stop for a spot check of a motorist’s driver’s license and
vehicle registration” 132 because officers enforcing the stop had “standardless and
unconstrained discretion” to carryout the program. In Prouse, the Government offered
“the apprehension of stolen motor vehicles” as an alternative explanation for the practice
being necessary. 133 In rejecting this argument, the Court noted the “interest in controlling
automobile thefts is not distinguishable from the general interest in crime control.” 134
Accordingly, a “general interest in crime control” cannot justify a suspicionless stop. 135
The U.S. Court of Appeals for the Ninth Circuit noted another exception to the
general rule in United States v. Faulkner. 136 In Faulkner the Ninth Circuit held that a
checkpoint on a public campground used for the “primary purpose” of providing
“information to visitors to the recreation area of the regulations governing its use, which
Id. at 40.
496 U.S. 444 (1990).
130 Edmond, 531 U.S. at 39.
131 440 U.S. 648, 663 (1979).
132 Edmond, 531 U.S. at 39.
133 Delaware v. Prouse, 440 U.S. 648, 659 (1979).
134 Id.
135 Edmond, 531 U.S. at 41 (“Without drawing the line at roadblocks designed primarily to serve the general
interest in crime control, the Fourth Amendment would do little to prevent such intrusions from becoming
a routine part of American life.”).
136 450 F.3d 466 (9th Cir. 2006).
128
129

19

include but are not limited to the possession or consumption of alcohol” did not violate
the Fourth Amendment. 137 In concluding no Fourth Amendment violation had occurred,
the court noted that the primary purpose of this checkpoint was not to “advance ‘the
general interest in crime control,’” 138 within the meaning of Prouse, but rather the
suspicionless stops served a “premeditated regulatory purpose.” 139
As this Court previously stated, “in judging reasonableness” courts should consider
“the gravity of the public concerns served by the seizure, the degree to which the seizure
advances the public interest, and the severity of the interference with individual
liberty.” 140 “A central concern in balancing these competing considerations in a variety of
settings has been to assure that an individual’s reasonable expectation of privacy is not
subject to arbitrary invasions solely at the unfettered discretion of officers in the field.” 141
In this case, the officers did not justify their stop of Carpenter by arguing they held
a reasonable suspicion that a crime had been or would be committed, nor did they justify
their stop by claiming it was to gather information. Instead, they stopped Carpenter for
the sole purpose of disseminating information. First, “[w]ere the court to approve of a
rule wherein law enforcement officers were free to conduct a traffic stop of any individual
with whom an officer has something to say, the Fourth Amendment protections presently
available to motorists would be immediately and greatly diminished.” 142 Second, the
public interest in allowing police officers to stop motorists to issue trespass warnings is
minimal, as law enforcement agencies have myriad less intrusive ways in which to
disseminate the information, such as by mail or telephone. Finally, “[t]he [U.S. Supreme]
Id. at 468–69, 474.
Id. at 470.
139 Id.
140 Lidster, 540 U.S. at 427 (citing Sitz, 496 U.S. at 450–55 (citation omitted)); see also Brigham, 382 F.3d at 506.
141 Id. (citing Sitz, 496 U.S. at 450–55 (citation omitted)); Brown v. Texas, 443 U.S. 47, 51 (1979).
142 Vincent v. City of Sulphur, 28 F. Supp. 3d 626, 648 (W.D. La. 2014).
137

138

20

Court has defined the severity of the subjective intrusion on individual liberty as
measured by the amount of concern and fright that is generated on the part of lawful
travelers.” 143 Unlike Faulkner and Sitz, the stop was not part of a regulated checkpoint,
which “is inherently of a less frightful nature than an ordinary seizure, such as a rovingpatrol stop.” 144 Moreover, the stop was not a part of a systematic plan put in place by the
police department. Like the plaintiffs in Prouse, Carpenter was “subject to . . . the
unfettered discretion of officers in the field.” 145 The Court finds the practice of stopping a
vehicle to provide its passenger with a no-trespass warning is plainly more akin to serving
a “general interest in crime control,” than specific “highway safety interests.” 146 As a
result, the Court finds Carpenter’s Fourth Amendment right to be free from unreasonable
seizure was violated in this case.
Although Sergeant Prevost’s actions in stopping Carpenter to issue a no trespass
warning violated Carpenter’s Fourth Amendment rights, the Court finds this right was
not clearly established at the time the violation occurred. In defining the contours of the
“clearly established” requirement, the Fifth Circuit has stated that, in determining
whether a right allegedly violated was clearly established at the time of the alleged
violation, a court must “be able to point to ‘controlling authority—or a robust consensus
of persuasive authority—that defines the contours of the right in question with a high
degree of particularity.’” 147 On the issue of how specific the right in question must be
defined, the Supreme Court has “repeatedly” cautioned that generalizations and abstract

Faulkner, 450 F.3d at 473 (citing Lidster, 540 U.S. at 427–28; Prouse, 440 U.S. at 653–54; MartinezFuerte, 428 U.S. at 558).
144 Id.
145 Prouse, 440 U.S. at 661; see also Brown, 443 U.S. at 51.
146 See Edmond, 531 U.S. at 34.
147 Wyatt v. Fletcher, 718 F.3d 496, 503 (5th Cir. 2013) (citing Morgan v. Swanson, 659 F.3d 359, 371–72
(5th Cir. 2011) (en banc)).
143

21

propositions are not capable of clearly establishing the law: “The general proposition, for
example, that an unreasonable search or seizure violates the Fourth Amendment is of
little help in determining whether the violative nature of particular conduct is clearly
established.” 148 Instead, the dispositive question is whether “in light of the specific
context of the case, not as a broad general proposition,’” the right was clearly established—
”[s]uch specificity is especially important in the Fourth Amendment context, where the
Court has recognized that ‘[i]t is sometimes difficult for an officer to determine how the
relevant legal doctrine . . . will apply to the factual situation the officer confronts.’” 149
The Court finds guidance in Prouse, in which the U.S. Supreme Court framed the
right in question as:
whether it is an unreasonable seizure under the Fourth and Fourteenth
Amendments to stop an automobile, being driven on a public highway, for
the purpose of checking the driving license of the operator and the
registration of the car, where there is neither probable cause to believe nor
reasonable suspicion that the car is being driven contrary to the laws
governing the operation of motor vehicles or that either the car or any of its
occupants is subject to seizure or detention in connection with the violation
of any other applicable law. 150

Ashcroft v. al-Kidd, 563 U.S. 731, 741–42 (2011) (stating the Court has “repeatedly told courts . . . not to
define clearly established law at a high level of generality”); see also Brosseau v. Haugen, 543 U.S. 194, 198
(2004) (holding that the clearly-established inquiry “must be undertaken in light of the specific context of
the case, not as a broad general proposition”). For example, in Pearson v. Callahan, 555 U.S. 223 (2009),
the U.S. Supreme Court held the Tenth Circuit’s framing of the issue in that case as the “right to be free in
one’s home from unreasonable searches and arrests” was too vague. Rather, the right was more
appropriately framed as “the right to be free from the warrantless entry of police officers into one’s home
to effectuate an arrest after one has granted voluntary, consensual entry to a confidential informant and
undertaken criminal activity giving rise to probable cause,” which the Court concluded was not clearly
established at the time the violation occurred. Id. at 231, 244–45 (referring to the right as the “consentonce-removed” doctrine); see also Gonzalez v. Huerta, 826 F.3d 854, 857–58 (5th Cir. 2016) (concluding
that the district court’s framing of the right as requiring “a police officer’s demand for identification . . . be
based on reasonable suspicion” was “precisely the type of ‘general proposition’ that the Supreme Court has
rejected” (citing al-Kidd, 563 U.S. at 731)).
149 Mullenix, 136 S. Ct. at 308–09 (reversing the court of appeals, which held it was clearly established that
“a police officer may not ‘use deadly force against a fleeing felon who does not pose a sufficient threat of
harm to the officer or others,’” finding the circuit court had failed to analyze whether the right was clearly
established “in light of the specific context of the case”).
150 Prouse, 440 U.S. 648, 650 (1979).
148

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Bearing in mind the particularized nature of the way in which the Court framed the issue in
Prouse, in this case the Court must determine whether it is clearly established that stopping
an automobile for the sole and singular purpose of disseminating information to its
passengers is an unreasonable seizure under the Fourth and Fourteenth Amendments.
The Court’s review of the case law reveals that only a single district court in this
circuit has held that a police officer’s stopping a motorist “for the sole and singular
purpose of delivering a no trespass warning to him” violates the Fourth Amendment. 151
However, without more than one district court opinion, which the Court notes is not
“controlling,” 152 a person’s right to be free from police officers’ stopping his or her
automobile for the purpose of disseminating information to its passengers is not clearly
established. 153 With no controlling authority “specifically prohibit[ing] the defendants
conduct,” no “clearly established law [has] put the constitutionality of [Sergeant
Prevost’s] actions beyond debate.” 154 Thus, Sergeant Prevost is entitled to qualified
immunity, and Plaintiffs’ Fourth Amendment claims against Sergeant Prevost in his
individual capacity must be dismissed.

Vincent, 28 F. Supp. 3d at 648.
See, e.g., Bishop v. City of Galveston, No. 11-4152, 2013 WL 960531, at *12 (S.D. Tex. Mar. 12, 2013)
(“[T]his Court first notes it is not bound by another district court decision.”), aff’d 595 F. App’x 372 (5th
Cir. 2014); Fox v. Acadia State Bank, 937 F.2d 1566, 1570 (11th Cir. 1991) (explaining that a district court
is not bound by another district court’s decision, or even an opinion by another judge of the same district,
only by its own appellate court and the Supreme Court); Colby v. J.C. Penney Co., Inc., 811 F.2d 1119, 1123
(7th Cir. 1987).
153 The Court’s research did not reveal any Fifth Circuit, Louisiana State Supreme Court, or U.S. Supreme
Court opinion with such a holding. In fact, although the district court in Vincent found the stop violated the
Fourth Amendment, it ultimately found the officers in that case were entitled to qualified immunity, as the
right to be free from such as stop was not clearly established. 28 F. Supp. at 648.
154 See Morgan, 659 F.3d at 371–72.
151

152

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3. Plaintiffs’ Official Capacity Claims Against Sheriff Webre
a. Plaintiffs’ Monell Claim under § 1983
A municipality may be liable under § 1983 if it “subjects a person to a deprivation of
rights or causes a person to be subjected to such deprivation.”155 To prevail on a § 1983 claim
against a local government or municipality, a plaintiff must establish: (1) an official policy or
custom, of which (2) a policy maker can be charged with actual or constructive knowledge,
and (3) a constitutional violation whose “moving force” is that policy or custom.156 An “official
policy” for purposes of § 1983 includes: (1) ”[a] policy statement, ordinance, regulation or
decision that is officially adopted and promulgated by the municipality’s lawmaking officers
or by an official to whom the lawmakers have delegated policy-making authority”; (2) a
persistent and widespread practice of city officials or employees, “which, although not
authorized by officially adopted and promulgated policy, is so common and well settled as to
constitute a custom that fairly represents municipal policy”;157 and (3) in some
circumstances, “a final decisionmaker’s adoption of a course of action ‘tailored to a particular
situation and not intended to control decisions in later situations.’” 158
Plaintiffs’ municipality liability or Monell claim in this case is based on (1) Sergeant
Prevost’s pulling Carpenter over and telling him that Plaisance was “pursuing a complaint
against [Carpenter]”; (2) Sheriff Webre’s failure to respond to Carpenter’s letters to
Sheriff Webre “specifically requesting ‘guidance on where the boundaries of Mr.
Plaisance’s property are’ or, ‘At the minimum, . . . some official guidance on how I may,
while on the open waters of this parish, determine where I can and cannot navigate my
Connick v. Thompson, 563 U.S. 51, 60 (2011) (internal quotation marks omitted).
Valle v. City of Hous., 613 F.3d 536, 541–42 (5th Cir. 2010).
157 Brown v. Bryan Cty., 219 F.3d 450, 457 (5th Cir. 2000). “Actual or constructive knowledge of such [a]
custom must be attributable to the governing body of the municipality or to an official to whom that body
had delegated policy-making authority.” Webster v. City of Hous., 735 F.2d 838, 841 (5th Cir. 1984).
158 Bryan Cty., 520 U.S. at 406 (quoting Pembaur v. Cincinnati, 475 U.S. 469, 481 (1986)).
155

156

24

vessel for commercial purposes’”; 159 and (3) “other similar cases and matters,” all of which
Carpenter alleges “evidence a custom, culture, and practice within the Lafourch [sic]
Parish Sheriff’s Department of discrimination against commercial fishermen in favor of
landowners and water bottoms claimants,” 160 in violation of the United States’ and
Louisiana’s “strong public policy.” 161
Carpenter points to no official policy in his complaint, and must therefore allege
sufficient facts to demonstrate the Lafourche Parish Sheriff’s Office’s policy of
“discriminat[ing] against commercial fishermen in favor of landowners and water
bottoms claimants” by pointing to a pattern or practice of discriminatory conduct. “The
description of a policy or custom and its relationship to the underlying constitutional
violation . . . cannot be conclusory; it must contain specific facts.” 162 Specific facts
demonstrating a municipality’s liability under Monell pursuant to a pattern of practice
include, for example, “past incidents of misconduct to others,” 163 or “multiple harms that
occurred to the plaintiff [himself].” 164
Plaintiffs do not base their Monell claim on the Lafourche Parish Sheriff’s Office’s
violations of other commercial fishermen’s rights, other than to allege “other similar cases

R. Doc. 25 at ¶ 44.
Id. at ¶ 52(A).
161 Id. at ¶ 55(A).
162 Spiller v. City of Tex. City, Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997) (citing Fraire v. Arlington, 957
F.2d 1268, 1277 (5th Cir. 1992)).
163 Thomas v. City of Galveston, 800 F. Supp. 2d 826, 843–44 (S.D. Tex. 2011) (citing Oporto v. City of El
Paso, No. 10-110, 2010 WL 3503457, at *8 (W.D. Tex. Sept. 2, 2010) (refusing to dismiss a failure-to-train
claim where plaintiffs alleged thirty-two prior incidents of officers using excessive deadly force); Sagan v.
Sumner County Board of Educ., 726 F. Supp. 2d 868, 887 (M.D. Tenn. 2010) (refusing to dismiss a failureto-train claim where plaintiff alleged that abuse by teacher had occurred numerous times over the course
of more than one academic year)).
164 Id. (citing Michael v. County of Nassau, No. 09-5200, 2010 WL 3237143, at *4 (E.D.N.Y. Aug. 11, 2010)
(refusing to dismiss failure-to-train claim in part because plaintiff alleged he had faced multiple incidents
of misconduct over a long, continuous time period)).
159

160

25

and matters” demonstrate such discrimination. 165 Moreover, Plaintiffs do not allege a
sufficient number of similar violations of their own rights to demonstrate the underlying
constitutional violation, 166 if any, is widespread. 167 “Where prior incidents are used to
prove a pattern, they ‘must have occurred for so long or so frequently that the course of
conduct warrants the attribution to the governing body of knowledge that the
objectionable conduct is the expected, accepted practice of city employees.’” 168 Because
Plaintiffs have failed to establish a pattern or practice of discrimination, they have failed
to state a claim for municipal liability upon which the Court may grant relief, and these
claims must be dismissed.
b. Fourteenth Amendment Equal Protection Claim
Carpenter and Reel Screamers next allege Sheriff Webre violated their Fourteenth
Amendment right to equal protection. In support of their equal protection claim,
Plaintiffs point to Carpenter’s June 2016 correspondence directed to “Lafourche Parish
Sheriff Craig Webre specifically requesting ‘guidance on where the boundaries of Mr.
Plaisance’s property are’ or, ‘At the minimum, . . . some official guidance on how [he] may,
while on the open waters of this parish, determine where [he] can and cannot navigate
[his] vessel for commercial purposes,’” 169 to which he received no response. Plaintiffs
contend Sheriff Webre has a history “of discrimination against commercial fishermen in

165 R. Doc. 25 at ¶ 52(A). The allegation that “other similar cases and matters” does not overcome Twombly
and Iqbal’s pleading requirements. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570.
166 The third prong requires a plaintiff to prove “moving force” causation. To succeed, “a plaintiff must show
that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct
causal link between the municipal action and the deprivation of federal rights.” Bryan Cty., 520 U.S. at 404.
167 See McConney v. City of Hous., 863 F.2d 1180, 1184 (5th Cir. 1989) (“A pattern requires ‘sufficiently
numerous prior incidents’ as opposed to ‘isolated instances.’”); Valle, 613 F.3d at 541–42; City of N.
Richland Hills, 406 F.3d 375, 383 (5th Cir. 2005).
168 Peterson v. City of Fort Worth, 588 F.3d 838, 850 (5th Cir. 2009) (quoting Webster, 735 F.2d at 842).
169 R. Doc. 25 at ¶ 44.

26

favor of landowners and water bottoms claimants,” 170 as evidenced by the lack of response
to these letters and “other similar cases and matters.” 171
The Fourteenth Amendment states “No State shall . . . deny to any person within
its jurisdiction the equal protection of the laws.” 172 “[E]ssentially . . . all persons similarly
situated should be treated alike.” 173 To plead such a claim, “a plaintiff typically alleges that
he ‘received treatment different from that received by similarly situated individuals and
that the unequal treatment stemmed from a discriminatory intent.’” 174 To state a claim
under the Equal Protection Clause, a § 1983 plaintiff must either allege that (a) “a state
actor intentionally discriminated against [him] because of membership in a protected
class,” or (b) he has been “intentionally treated differently from others similarly situated
and that there is no rational basis for the difference in treatment.” 175
Because Plaintiffs do not allege they are members of a protected class, they
apparently make a “class of one” equal protection claim. 176 In Village of Willowbrook v.
Olech, the Supreme Court held that the Equal Protection Clause can give rise to a cause
of action on behalf of a ‘class of one,’ even when the plaintiff does not allege membership
in a protected class or group. 177 To state a class of one equal protection claim, a plaintiff
must offer a comparator he contends is similarly situated, but treated more favorably for

Id. at ¶ 52(A).
Id. Plaintiffs also assert this claim against Sergeant Prevost; however, Plaintiffs make no factual
allegations against Sergeant Prevost to substantiate this claim. As a result, the Court dismisses this claim
against Sergeant Prevost for failure to state a claim. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570.
172 U.S. CONST. amend. XIV, § 1.
173 Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 212 (5th Cir. 2009) (citing Qutb v. Strauss, 11 F.3d 488, 492
(5th Cir. 1993)) (internal quotations and additional citations omitted).
174 Id. at 212–13 (citing Taylor v. Johnson, 257 F.3d 470, 473 (5th Cir. 2001)).
175 Gibson v. Tex. Dep’t of Ins., 700 F.3d 227, 238 (5th Cir. 2012) (internal citations omitted).
176 See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (finding the plaintiffs properly alleged
they had been treated differently from other similarly situated property owners); Gil Ramirez Grp., LLC v.
Houst. Indep. Sch. Dist., 786 F.3d 400, 419 (5th Cir. 2015) (explaining that an equal protection claim
depends on either identifying a class or showing that the aggrieved party is a “class of one”).
177 Olech, 528 U.S. at 563–64.
170
171

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no rational purpose. 178 In this case, Plaintiffs have made no allegation that the Lafourche
Parish Sheriff’s Office treated them differently than others who are similarly situated.179
Accordingly, this claim is dismissed.
4. Plaintiffs’ Individual Capacity Claims Against Sheriff Webre
With respect to Plaintiffs’ § 1983 claim against Sheriff Webre in his individual capacity
based on Sergeant Prevost’s June 6, 2016 traffic stop, Plaintiffs have not alleged Sheriff
Webre had any direct, personal involvement with respect to the seizure. 180 As a result, the
Court dismisses Plaintiffs’ claims against Sheriff Webre in his individual capacity. 181
D. Plaintiffs’ Sherman Act Claims Against the Sheriff Defendants
Plaintiffs allege the Sheriff Defendants’ conduct demonstrates a “collaborative
effort between PLAISANCE, SGT. PREVOST, SHERIFF WEBRE, and by extension,
CASTEX, to restrain Plaintiffs’ interstate trade in violation of the Anti-Trust laws,” 182
specifically 15 U.S.C. § 1 (the “Sherman Act”). 183

Monumental Task Comm., Inc. v. Foxx, No. 15-6905, 2016 WL 5780194, at *3 (E.D. La. Oct. 4, 2016)
(citing Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 824 (5th Cir. 2007)).
179 See XP Vehicles, Inc. v. Dept. of Energy, 118 F. Supp. 3d 38, 78 (D.C. Cir. 2015) (finding plaintiffs’
complaint did not contain sufficient allegations to survive defendant’s 12(b)(6) motion to dismiss where
there were no other similarly situated parties). As the Court previously noted, the allegation that Sheriff
Webre’s conduct in “other similar cases and matters” evidence his discrimination against commercial
fishermen, without more, does not overcome Twombly and Iqbal’s pleading requirements. See Iqbal, 556
U.S. at 678; Twombly, 550 U.S. at 570.
180 See Winfrey, 481 F. App’x at 976 n.6 (“The individual-capacity suit against Wright also fails because
nothing in the record shows that Wright had any direct, personal involvement . . . .”); Thompson v. Steele,
709 F.2d 381, 382 (5th Cir. 1983); see also Jenkins, 402 So. 2d at 671 (“[I]f the sheriff as an employer is to
be held vicariously liable for the torts of his employee, he is liable only because he is sheriff and is only liable
to the extent that he holds that office. He is not liable personally, and his personal funds and property
cannot be subjected to execution of a judgment decreeing that liability.” (footnote omitted)).
181 See Winfrey, 481 F. App’x at 976; Jenkins, 402 So. 2d at 671.
182 R. Doc. 65 at 4, 6, 7, 8, 9, 10; see R. Doc. 25 at ¶¶ 58(BB); 59(H); 72; 93–99.
183 R. Doc. 65 at 1–3; R. Doc. 25 at ¶¶ 3, 61 (alleging various violations of the “Commerce Clause”). Plaintiffs
also cite to 15 U.S.C. §§ 13, 15 in their complaint. R. Doc. 25 at ¶ 3. The Robinson Patman Act makes it
unlawful under certain circumstances “to discriminate in price between different purchasers of
commodities of like grade and quantity.” 15 U.S.C. § 13(a). Other provisions of the Robinson Patman Act
also in general denounce similar discrimination between purchasers of goods with respect to commissions
regarding such purchases, or in the payment for or furnishing of services or facilities. 15 U.S.C. §§ 13(c), (d)
& (e). No such price (or commission or services or facilities) discrimination is alleged in the complaint.
Therefore, this claim is dismissed. See Norris v. Hearst Trust, 500 F.3d 454, 463 (5th Cir. 2007). Similarly,
the Clayton Act, 15 U.S.C. § 15(a), provides a private damage action (treble damages) for any person “injured
178

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The Sherman Act prohibits all agreements that restrain trade.184 To establish a
Sherman Act violation under § 1, a plaintiff must demonstrate that: “(1) [the defendants]
engaged in a conspiracy, (2) the conspiracy had the effect of restraining trade “among the
several States, or with foreign nations,” and (3) trade was restrained in the relevant market.”185
To satisfy the first element, that the defendants conspired to restrain the plaintiff’s
trade, Plaintiffs must show “that the defendants engaged in concerted action, defined as having
‘a conscious commitment to a common scheme designed to achieve an unlawful objective.’”186
Concerted action may be shown by either direct or circumstantial evidence. Direct evidence
explicitly refers to an understanding between the alleged conspirators, while circumstantial
evidence requires additional inferences to support a conspiracy claim.187 Independent parallel
conduct, or even conduct among competitors that is consciously parallel, does not alone
establish the contract, combination, or conspiracy required by § 1.188
Plaintiffs’ amended complaint fails to demonstrate that an essential element of the
Sherman Act is met in this case, 189 as Plaintiffs do not “allege any specific facts
demonstrating an intention on the part of [Defendants], or any other party to engage in a
conspiracy.” 190 Plaintiffs’ amended complaint, as clarified by their supplemental
memorandum, alleges that “Defendants collectively have combined in the form of trust
or otherwise, and/or conspired in restraint of interstate trade or commerce upon the
waters at issue in this matter and have further generated unfair competition upon the
in his business or property by reason of anything forbidden in the antitrust laws.” Because the Court finds
Plaintiffs have not made out a claim for relief based on Anti-Trust, the Court dismisses Plaintiffs’ claim for
treble damages under the Clayton Act.
184 See Arizona v. Maricopa Cnty. Med. Soc’y, 457 U.S. 332, 342 (1982).
185 Apani Sw., Inc. v. Coca–Cola Enters., Inc., 300 F.3d 620, 627 (5th Cir. 2002).
186 Golden Bridge Tech., Inc. v. Motorola, Inc., 547 F.3d 266, 271 (5th Cir. 2008) (quoting Monsanto Co. v.
Spray–Rite Serv. Corp., 465 U.S. 752, 764 (1984)).
187 See Tunica Web Adver. v. Tunica Casino Operators Ass’n, 496 F.3d 403, 409 (5th Cir. 2007).
188 See Twombly, 550 U.S. at 556–57.
189 Id. at 555; Cuvillier, 503 F.3d at 401.
190 Marucci Sports, LLC v. Nat’l Collegiate Athletic Ass’n, 751 F.3d 368, 375 (5th Cir. 2014).

29

navigable waters of the United States.” 191 In support of their conspiracy claim, they point
to: (1) the fact that, while Plaintiffs were on Golden Pond, Plaisance “claimed that he
managed the land in that area, that [Carpenter] and his clients were trespassing on private
property, and that they had to leave”; 192 (2) Sergeant Prevost’s telling Carpenter he would
be arrested “if found on ‘any waters that the State Lands Map did not show as public,’”
which “prohibited Plaintiff from access to untold navigable waters on a statewide
basis” 193; (3) Carpenter’s June 6, 2016 encounter with Sergeant Prevost, Deputy Duet,
and “an unidentified Grand Isle Policeman,” during which Sergeant Prevost pulled
Carpenter over, “physically block[ing]” Carpenter’s “ingress and egress” 194; (4) Sheriff
Webre’s failure to respond to Plaintiffs’ letters “requesting ‘guidance on where the
boundaries of Mr. Plaisance’s property are’” 195; (5) the fact that Plaisance, as Castex
Lafourche, LP’s agent, “ran [Plaintiffs] off” Golden Pond, despite having “personal and
actual knowledge of the navigability of Golden Pond and other water bodies in the
area” 196; and (6) the fact that Sheriff Webre “had full knowledge” of Sergeant Prevost’s
having stopped Carpenter on June 6, 2016 “directly and by way of Plaintiffs’
correspondence.” 197
The Sheriff Defendants and the Castex Defendants’ individual acts and the
circumstantial evidence Plaintiffs offer to demonstrate their concerted efforts do not
support an inference that the parties conspired to restrain Plaintiffs’ trade. Parallel
conduct, without more, is not enough to state a Sherman Act § 1 conspiracy claim. 198 Thus,

R. Doc. 25 at ¶ 98; R. Doc. 65 at 4, 6, 7, 8, 9, 10.
R. Doc. 25 at ¶ 19; R. Doc. 65 at 4.
193 R. Doc. 25 at ¶ 40(C); R. Doc. 65 at 6–7.
194 R. Doc. 25 at ¶ 43; R. Doc. 65 at 7.
195 R. Doc. 25 at ¶ 44; R. Doc. 65 at 7–8.
196R. Doc. 65 at 8–9; see R. Doc. 25 at ¶¶ 29, 34.
197 R. Doc. 25 at ¶ 48; R. Doc. 65 at 9–10.
198 See Twombly, 550 U.S. at 556–57.
191

192

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Plaintiffs have failed to sufficiently allege the first element in a Sherman Act conspiracy
claim that Defendants made “a conscious commitment to a common scheme designed” to
restrain Plaintiffs’ trade. 199
Even assuming Plaintiffs did sufficiently allege the Sheriff Defendants “conspired”
to restrain Plaintiffs’ trade, Plaintiffs also must sufficiently allege that the conspiracy had
the effect of restraining interstate trade. Plaintiffs allege no facts to substantiate their
assertion that they are engaged in interstate trade of any kind, or how the alleged restraint
had any effect on commerce. 200 Plaintiffs make only the bare assertion that the Sheriff
Defendants “restrain[ed] [their] interstate trade.” Plaintiffs have provided no factual
support for their allegation that the alleged conspiracy had the effect of restraining
Plaintiffs’ interstate trade or that the Sheriff Defendants’ actions operated to restrain
commercial competition in some substantial way.
Finally, a viable Sherman Act claim requires a plaintiff to sufficiently allege trade
was restrained in the “relevant market.” 201 In defining the relevant market, district courts
look to “the area of effective competition.” 202 This is the area “in which the seller operates
and to which buyers can practicably turn for supplies.” 203 In addition, the proposed
market must “correspond to the commercial realities of the industry and be economically

See Marucci Sports, LLC, 751 F.3d at 375 (finding that, although the plaintiff alleged the defendants’
independent actions were evidence of a conspiracy, the plaintiff’s allegations “[did] not set forth facts that
demonstrate a “meeting of the minds” between the NCAA, NFHS, and other alleged conspirators”);
compare Broyles v. Wilson, No. 93-3132, 1993 WL 347222, at *4 (5th Cir. Aug. 19, 1993) (affirming
dismissal where complaint contained no specific facts showing that the defendant and his alleged coconspirators intended to join a conspiracy), with Dillard v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
961 F.2d 1148, 1159 (5th Cir. 1992) (holding that plaintiffs pleadings were sufficient because, in addition to
alleging that a conspiracy existed, the complaint indicated that the defendants met and collectively agreed
on a method of manipulating the relevant market).
200 See Apex Hosiery Co. v. Leader, 310 U.S. 469, 484 (1940).
201 Apani, 300 F.3d at 627.
202 Tampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320, 328 (1961).
203 Apani, 300 F.3d at 626 (citing Tampa Elec. Co., 365 U.S at 327).
199

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significant.” 204 These “commercial realities” include “size, cumbersomeness, and other
characteristics of the relevant product” along with “regulatory constraints impeding the
free flow of competing goods into an area, [such as] perishability of products, and
transportation barriers.” 205 In this case, Plaintiffs have made no allegations identifying a
relevant market. Accordingly, Plaintiffs have failed to sufficiently allege any of the three
elements necessary to an actionable Sherman Act claim under § 1, and Plaintiffs’ Sherman
Act claims against the Sheriff Defendants must be dismissed. 206
E. Plaintiffs’ General Maritime Tort/Negligence Claims Against the
Sheriff Defendants
Before a plaintiff may bring a maritime negligence or intentional tort claim, he
must first establish that admiralty jurisdiction exists. 207 Federal courts have subject
matter jurisdiction over admiralty cases pursuant to Article III, Section 2, and 28 U.S.C.
§ 1333(1). 208 To establish admiralty jurisdiction, “this Circuit applies a two-part
inquiry.” 209 “The first question is geographic” and requires the court to determine
whether “the tort occur[ed] on navigable waters.” 210 Second, courts must consider

Brown Shoe Co. v. United States, 370 U.S. 294, 336–37 (1962) (internal quotes omitted).
Apani, 300 F.3d at 626 (citations omitted).
206 Additionally, as the U.S. Supreme Court has “repeatedly recognized, the Sherman Act was intended to
prohibit only unreasonable restraints of trade.” Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of Univ. of
Ok., 468 U.S. 85, 98 (1984) (emphasis added) (citing Maricopa Cnty. Med. Soc’y, 457 U.S. at 342–343);
Nat’l Soc’y of Prof. Engineers v. United States, 435 U.S. 679, 687–688 (1978); Chicago Bd. of Trade v.
United States, 246 U.S. 231, 238 (1918)). As the Court discusses below, Golden Pond is private property.
Because it is reasonable for “owners of private property [to] forbid entry to anyone for purposes of hunting
or fishing and the like,” Parm v. Shumate, 513 F.3d 135, 140 (5th Cir. 2007) (quoting Walker Lands, Inc. v.
East Carroll Parish Police Jury, 871 So. 2d 1258, 1265–66 (La. App. 2 Cir. 2004)), and “[p]olice officers
have an affirmative duty to enforce the law,” Lewis v. Goodie, 798 F. Supp. 382, 390 (W.D. La. 1992),
including the duty to exclude unwanted persons from private property following a “reasonably
contemporaneous request to leave,” State v. Ceaser, 859 So. 2d 639, 644 (La. 2003), this alleged “restraint
of trade”—specifically, a private person requesting that Plaintiffs leave his property and a police officer
enforcing that request—is not unreasonable.
207 Richendollar v. Diamond M. Drilling Co., 819 F.2d 124, 127 (5th Cir. 1987) (en banc).
208 Under 28 U.S.C. 1333(1), courts have “original jurisdiction . . . of . . . [a]ny civil case of admiralty or maritime
jurisdiction.”
209 Molett v. Penrod Drilling Co., 872 F.2d 1221, 1224 (5th Cir. 1989).
210 Richendollar, 819 F.2d at 127.
204
205

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whether the wrong “bear[s] a significant relationship to traditional maritime activity.” 211
Under this test, “waters are navigable ‘when they form . . . a continued highway over which
commerce is or may be carried on with other States or foreign countries.’” 212 Stated
differently, navigable waters in the context of establishing admiralty jurisdiction are
“interstate waters that are navigable in fact.” 213
Plaintiffs frame their maritime tort claims against the Sheriff Defendants as based
on the fact that “To date, Plaintiffs have received no response from . . . SHERIFF WEBRE”
regarding the correspondence Carpenter directed to Sheriff Webre “in an effort to
ascertain the parameters of SGT. PREVOST’s admonition and threats of arrest.” 214
Plaintiffs do not allege any of their interactions with the Sheriff Defendants took place on
navigable waters. Because the jurisdictional prerequisite of these claims is absent, namely
that the alleged intentional or negligent tort ocurred on navigable waters, the Court has
no jurisdiction over the maritime tort or negligence claim against the Sheriff Defendants,
and these claims must be dismissed.
VI.

THE CASTEX DEFENDANTS’ 12(B)(6) MOTION TO DISMISS

A. Plaintiffs’ General Maritime Tort/Negligence Claims Against the
Castex Defendants
As the Court previously noted, 215 before a plaintiff may bring a maritime negligence
or intentional tort claim, he must first establish that admiralty jurisdiction exists. To
establish admiralty jurisdiction, a plaintiff must sufficiently allege the tort occurred on

Id. (quoting Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 268 (1972)); see also Sanders v. Placid Oil
Co., 861 F.2d 1374, 1376–77 (5th Cir. 1988) (citation omitted).
212 The Daniel Ball, 77 U.S. 557, 563 (1870); see also The Montello, 87 U.S. 430, 442 (1874) (recognizing
that if a waterway is capable of being used for commerce, it is navigable).
213 Rapanos v. United States, 547 U.S. 715, 723 (2006) (noting the traditional definition of navigable waters,
rejecting the argument that only actually-navigable waters can be regulated by the Clean Water Act, and
holding the word “navigable” in the Act cannot be divested of all meaning).
214 R. Doc. 25 at ¶44; R. Doc. 65 at 7, 11.
215 See the Court’s discussion supra notes 207–14.
211

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navigable waters and that the wrong “bear[s] a significant relationship to traditional
maritime activity.” 216 Under this test, “waters are navigable ‘when they form . . . a
continued highway over which commerce is or may be carried on with other States or
foreign countries.’” 217 Stated differently, navigable waters in the context of establishing
admiralty jurisdiction are “interstate waters that are navigable in fact.” 218
Plaintiffs contend the maritime tort—which they describe as being impermissibly
excluded from fishing on public land—occurred on Golden Pond. In their complaint, Plaintiffs
allege they accessed Golden Pond on a “vessel [that] is 24 [feet] in length and powered by a 225
[horsepower] outboard motor”219 through a series of “interconnected natural navigable
waterways,”220 which connect Golden Pond to the Gulf Mexico.221 Thus, Plaintiffs have
sufficiently alleged Golden Pond is an “interstate water[body] that [is] navigable in fact.” 222
Accordingly, Golden Pond meets the definition of “navigable waters” for the purposes of
maritime jurisdiction.223 Further, chartered fishing tours, which by nature take place on water,
bear a significant relationship to traditional maritime activity.224 Accordingly, with respect to
Richendollar, 819 F.2d at 127 (quoting Aviation, Inc., 409 U.S. at 268); see also Sanders, 861 F.2d at
1376–77 (citation omitted).
217 The Daniel Ball, 77 U.S. at 563; see also The Montello, 87 U.S. at 442 (recognizing that if a waterway is
capable of being used for commerce, it is navigable).
218 Rapanos, 547 U.S. at 723 (noting the traditional definition of navigable waters, rejecting the argument
that only actually-navigable waters can be regulated by the Clean Water Act, and holding the word
“navigable” in the Act cannot be divested of all meaning).
219 R. Doc. 25 at ¶ 14.
220 Id. at ¶¶ 15, 16.
221 See id. at ¶ 8 (alleging that Golden Pond is “a tidal influenced lake situated south and west of Bay Rambo
which is north of Grand Isle, Louisiana, within the territorial bounds of Lafourche Parish, Louisiana. Over
80 acres in area, the Golden Pond is presently susceptible of commercial navigation, is subject to tidal
influence, and is connected to numerous navigable tidal rivers, lakes, and bays, to Caminada Bay which
flows into the Gulf of Mexico. These bodies of water form a continuous, navigable highway on which
commercial activity takes place”).
222 Rapanos, 547 U.S. at 723 (noting the traditional definition of navigable waters, rejecting the argument
that only actually-navigable waters can be regulated by the Clean Water Act, and holding the word
“navigable” in the Act cannot be divested of all meaning).
223 See PPL Montana, LLC v. Montana, 565 U.S. 576, 591–92 (2012) (noting The Daniel Ball formulation
of navigability, “concerning federal power to regulate navigation,” “is not applied in the same way” in
different types of cases).
224 See Foremost Ins. Co. v. Richardson, 457 U.S. 668, 675–76 (1982) (holding “pleasure boats” bear “a
significant relationship with maritime commerce”).
216

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Plaintiffs’ maritime tort claims against the Castex Defendants, the Court finds Plaintiffs have
sufficiently pleaded facts to establish this Court’s admiralty jurisdiction.
Having established the Court’s maritime jurisdiction, to survive the motion to
dismiss, Plaintiffs’ amended complaint must state a claim that is plausible on its face,
supported by factual allegations that would entitle them to relief. In this case, Plaintiffs
allege the Castex Defendants tortiously interfered with Plaintiffs’ right to fish on waters
open to the public. 225 Plaintiffs assert their right to fish on public waters exists in the
Louisiana Constitution, which provides that the freedom to hunt, fish, and trap wildlife is
a valued natural heritage that will be forever preserved. 226 They also find support in the
Louisiana Civil Code, which provides that everyone has the right to fish in the State’s
waters. 227 Plaintiffs’ cause of action in tort rests on two alternative theories: (1) that the
bed of Golden Pond is owned by the State of Louisiana and held in public trust and (2)
that Golden Pond is encumbered by a federal navigational servitude.
In support of their contention that the bed of Golden Pond is owned by the State
and “insusceptible of private ownership” Plaintiffs argue that, because Golden Pond is
navigable in fact, it “is navigable in law,” 228 and therefore, “subject to the Public Trust
Doctrine.” 229 Because the water bottom of Golden Pond is held by the State in public trust,
Plaintiffs submit, the State could not have validly conveyed the bed of Golden Pond to the
Castex Defendants or their predecessors in title. 230 Alternatively, Plaintiffs claim the

Plaintiffs allege Golden Pond is “insusceptible of private ownership.” R. Doc. 25 at ¶ 8(N).
See LA. CONST. art. I, § 27.
227 See La. Civ. Code art. 452.
228 R. Doc. 41 at 9.
229 Id. at 12.
230 Id.
225

226

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waters of Golden Pond are subject to a federal navigational servitude, which they aver
“includes the right to commercially fish.” 231
In response, the Castex Defendants argue the Fifth Circuit’s 1993 and 1995 rulings
in Dardar v. Lafourche Realty Co., Inc. preclude Plaintiffs’ claims. 232 In Dardar,
commercial fishermen sued the Lafourche Realty Company, which at the time owned
Golden Pond, seeking the right to use the system of navigable waters on the Lafourche
Realty property. 233 “The State of Louisiana intervened, asserting a right of public use of
the waters and claiming title to the water bodies and over twelve thousand acres of land
under the waters.” 234 Ultimately, in two separate opinions, the Fifth Circuit determined
the property at issue in Dardar is not owned by the State, is not subject to the public trust,
and is not encumbered by a navigational servitude. 235 It is undisputed that Golden Pond
is situated within the boundaries of the property at issue in Dardar. 236
The preclusive effect of a prior judgment is defined by claim preclusion and issue
preclusion, which are collectively referred to as “res judicata.” 237 Issue preclusion, or
“collateral estoppel,” bars “‘successive litigation of an issue of fact or law actually litigated
and resolved in a valid court determination essential to the prior judgment,’ even if the
Id. at 17.
985 F.2d 824 (5th Cir. 1993); 55 F.3d 1082 (5th Cir. 1995).
233 Dardar I, 985 F.2d at 826.
234 Id.
235 Id. (“Upon finding that none of the Lafourche Realty property constituted the ‘bottoms of natural
navigable water bodies . . . [or] the seashore,’ the district court concluded that the State did not run afoul of
any restriction on alienation of public things. This conclusion was correct. At the time of the issuance of
patents, the property consisted of only inland non-navigable water bodies and swamp land subject to
overflow—neither of which is inalienable public property under the Code.”); Dardar II, 55 F.3d at 1083,
1086 (stating that the “application of the Kaiser Aetna test inexorably leads to the conclusion that the
federal navigational servitude should not be imposed”).
236 According to Plaintiffs, “Golden Pond is a naturally existing lake, . . . [t]he majority of [which] falls within
Section 19 of T[ownship] 20 S[outh], R[ange] 23 E[ast], in Lafourche Parish.” R. Doc. 25 at ¶ 8(A). The
Dardar decisions expressly addressed the entirety of this same Section 19. See Rec. Doc. 15-4 at 3 (listing
the exact areas at issue in Dardar, including “Township 20 South, Range 23 East[:] All of section[] . . . 19”);
see also R. Doc. 49-4 (displaying an aerial map of the Golden Pond showing it falls within the Dardar
judgment’s boundaries).
237 Taylor v. Sturgell, 553 U.S. 880, 892 (2008).
231

232

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issue recurs in the context of a different claim.” 238 Issue preclusion is intended to protect
parties from multiple lawsuits, to avoid the possibility of inconsistent decisions, and to
conserve judicial resources. 239
Although the Federal Rules of Civil Procedure generally require an affirmative
defense, including one based in res judicata, be pleaded in the defendant’s answer, a claim
may also be dismissed on a Rule 12(b)(6) motion if a successful affirmative defense appears
clearly on the face of the pleadings. 240 Thus, the court may dismiss a claim under Rule
12(b)(6) if it appears from the face of the complaint that the claim is barred by res judicata. 241
A litigant who was not a party to the prior suit cannot be said to have “had a ‘full and fair
opportunity to litigate’ the claims and issues settled” in the prior lawsuit, 242 and therefore,
issue preclusion generally cannot be applied against him. There are, however, six
exceptions to the rule against nonparty preclusion, as articulated by the U.S. Supreme
Court in Taylor v. Sturgell. 243
Relevant to the case at bar is Taylor’s third exception, the “adequate
representation” exception. 244 Pursuant to this exception, “a nonparty may be bound by a
judgment because she was ‘adequately represented by someone with the same interests
who [wa]s a party’ to the suit.” 245 For the adequate representation exception to apply in
this case, the Court must find (1) Plaintiffs’ interest and the interest of the State of

Id. (quoting New Hampshire v. Maine, 532 U.S. 742, 748, (2001)).
Lytle v. Household Mfg., Inc., 494 U.S. 545 (1990) (citing Montana v. United States, 440 U.S. 147 (1979)).
240 Kan. Reinsurance Co. v. Cong. Mktg. Corp. of Tex., 20 F.3d 1362, 1366 (5th Cir. 1994); Clark v. Amoco
Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986); Larter & Sons, Inc. v. Dinkler Hotels Co., 199 F.2d 854, 855 (5th
Cir. 1952); see also Clifton v. Warnaco, Inc., Nos. 94-10226 & 94-10657, 1995 WL 295863, at *6 n.13 (5th Cir.
April 18, 1995); Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980) (permitting sua sponte dismissal on res
judicata grounds when, in the interest of judicial economy, both actions were brought before the same court,
even though the record contained neither the complaint nor the order of dismissal in the earlier action).
241 See, e.g., Cade v. U.S. Postal Serv., 45 F. App’x 323 (5th Cir. 2002).
242 Id.
243 553 U.S. 880 (2008).
244 Id. (quoting Richards v. Jefferson Cty., 517 U.S. 793, 789 (1996) (internal quotation marks omitted)).
245 Id.
238
239

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Louisiana in Dardar are aligned, and (2) the State of Louisiana was acting in a
representative capacity in the Dardar litigation. 246
In Dardar, the State of Louisiana made the argument Plaintiffs now assert;
namely, that the bed of Golden Pond is property of the State of Louisiana held in public
trust and, therefore, the public has a right to use its waters, and/or the waters of Golden
Pond are encumbered by a federal navigational servitude and, therefore, Golden Pond is
accessible to the public. “[T]he proposition that governments may represent private
interests in litigation, precluding relitigation, is clear,” 247 so long as the representation
was adequate. Plaintiffs make no allegations that the State of Louisiana did not adequately
represent the interests of the public in the Dardar litigation. It is clear that the
relationship between the State of Louisiana, acting on behalf of the public, and Carpenter,
a member of the public, is “close enough to preclude relitigation.” 248
Having determined the “adequate representation” exception to the bar on
nonparty issue preclusion applies in this case, the Court next determines whether each of
See id. at 900.
Southwest Airlines Co. v. Tex. Int’l Airlines, Inc., 546 F.2d 84, 98 (5th Cir. 1977). The Court notes that
in Southwest Airlines, the Fifth Circuit referred to this exception to nonparty preclusion as “virtual
representation,” an exception explicitly rejected by the U.S. Supreme Court in Sturgell. Closer examination
of the Fifth Circuit’s opinion in Southwest Airlines, however, reveals the concept analyzed in that case is
more properly referred to as the “adequate representation” exception. For example, in determining whether
an exception to the bar on nonparty preclusion applied in Southwest Airlines, the Fifth Circuit looked to
the Restatement (Second) of Judgments section 41, the same section of the Restatement to which the U.S.
Supreme Court cited in concluding the adequate representation exception remained viable in Sturgell.
Compare Southwest Airlines, 546 F.2d at 98, with Taylor, 553 U.S. at 894. Additionally, in Nevada v.
United States, the U.S. Supreme Court explained, citing Restatement (Second) of Judgments § 41(d), that
it cannot “consistently with any principle, be tolerated that, after the United States on behalf of its wards
had invoked the jurisdiction of it courts . . . these wards should themselves be permitted to relitigate
question.” 463 U.S. 110 (1983) (quoting Heckman v. United States, 224 U.S. 413, 446 (1912)) (citing
RESTATEMENT (SECOND) OF JUDGMENTS § 41(d) (1982)).
248 Southwest Airlines, 546 F.2d at 98; see also Nevada, 463 U.S. at 142 (“There can be no more complete
representation than that on the part of the United States in acting on behalf of [its] dependents . . . .”
(quoting Heckman, 224 U.S. at 444)); RESTATEMENT (SECOND) OF JUDGMENTS § 41(d) (explaining that where
a public official or agency exercises his “authority to maintain or defend litigation on behalf of individuals
or of a collective public interest,” he “represents such other persons for the purposes of litigation concerning
the interests in question and the judgment is binding on them”). The Court notes that access to a public
waterbody is not “personal in nature,” as it does not concern a person’s individually held right, such as the
right to vote or the deprivation of personal property. See Richards, 517 U.S. at 801–02 & n.6.
246
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the elements of collateral estoppel are met. To establish collateral estoppel, a party must
show “(1) that the issue at stake [is] identical to the one involved in the prior litigation;
(2) that the issue has been actually litigated in the prior litigation; and (3) that the
determination of the issue in the prior litigation has been a critical and necessary part of
the judgment in that earlier action.” 249
The issues at stake in this case and the issues at stake in the Dardar litigation are
identical. In this case, as in Dardar, the underlying issue is whether the waters of Golden
Pond are accessible to the public. As in Dardar, answering this question depends on
whether (1) the bed of Golden Pond is owned by the State of Louisiana and held in public
trust for the use of the people of Louisiana; 250 or (2) Golden Pond is encumbered by a
federal navigational servitude. 251
1. Public Trust Doctrine
Plaintiffs first argue Golden Pond is accessible to the public, as it is subject to the
public trust doctrine. In support of this claim, Plaintiffs, like the State of Louisiana in
Dardar, argue “Whether the area in question was navigable in 1812 is of no moment to
the issues before this Court in 201[8].” 252 Plaintiffs are mistaken.
As the Fifth Circuit in Dardar I explained, “Louisiana, upon attaining statehood
[in 1812], received ownership of all navigable waters within its borders and all tide waters
and the lands under them from the United States in public trust.” 253 The Fifth Circuit
Rabo Agrifinance, Inc. v. Terra XXI, Ltd., 583 F.3d 348, 353 (5th Cir. 2009) (citing Wehling v. CBS, 721
F.2d 506, 508 (5th Cir. 1983)).
250 Dardar I, 985 F.2d at 826.
251 Dardar II, 55 F.3d 3d at 1083, 1086.
252 See id. at 831 (noting that the State of Louisiana argued “waters which are today saline, subject to ebb
and flow of the tide, and de facto used in commercial navigation” are State owned).
253 Dardar I, 985 F.2d at 827 (citing Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 479–81 (1988));
see also State v. Jefferson Island Salt Mining Co., 163 So. 145, 152 (La. 1935) (“The title of the state is
dependent upon the navigability of [the waterbody] in 1812, the date of the admission of Louisiana into the
Union. If at that time the [waterbody] was a navigable body of water[,] all of its bed below high water mark
became the property of the state in virtue of her inherent sovereignty.” (emphasis added))).
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noted, however, that non-navigable waters such as “swamplands subject to overflow”
could be conveyed from the State to private owners. 254 Ultimately, the Fifth Circuit held
that, “[p]ursuant to the Swamp Land Grant Acts of 1849 and 1850,” “[t]he State conveyed
the water bottoms [at issue in this case] by various transfers to [Castex’s] ancestors-intitle between 1861 and 1901.” 255 The Fifth Circuit affirmed the district court’s “finding that
no natural navigable water bodies existed on the property in 1812” and therefore rejected
the State’s contention that the water bottoms at issue in Dardar were owned by the State
and, therefore, subject to the public trust. 256
2. Federal Navigational Servitude
In support of their maritime tort/negligence claim, Plaintiffs next argue Golden
Pond is subject to a federal navigational servitude. “The navigational servitude arises by
virtue of the Commerce Clause in some navigable waters.” 257 When a water body is subject
to a navigational servitude, it gives rise to the right of the public to use those waterways
as “continuous highways for the purpose of navigation in interstate commerce.” 258 This
servitude does not, however, extend to all navigable waters generally; rather, “unless a
navigational servitude is imposed on a waterway, the public has no right to use it.” 259 “A
landowner whose properties contain navigable waterways may escape this servitude by
showing either that the waterways were not navigable in their natural state or, if naturally
navigable, by demonstrating that his interests outweigh those of the public.” 260

Id. at 826.
Id. The original quote states “The State conveyed the water bottoms by various transfers to Lafourche
Realty’s ancestors-in-title between 1861 and 1901”; however, Lafourche Realty conveyed the land to Castex
in 2008. R. Doc. 15-3.
256 Id. at 826–32.
257 Dardar I, 985 F.2d at 832.
258 Id.
259 Id. (citing United States v. Kaiser Aetna, 444 U.S. 164, 175 (1979)).
260 Dardar II, 55 F.3d at 1084.
254
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In Kaiser Aetna v. United States, the U.S. Supreme Court noted several factors
indicating no navigational servitude was imposed on Kuapa Pond, the water body at issue in
that case, despite its being navigable in fact:
1) Kuapa Pond in its natural state could not have been navigated and was not
comparable to the major natural bodies of water to which the servitude had
earlier been applied; 2) the pond was private property under Hawaiian law; 3)
the pond had been converted to a navigable body of water by the petitioners
through the investment of private funds; and 4) the Corps had earlier
consented to the conversion. 261
In Dardar II, the Fifth Circuit evaluated whether the waterbodies at issue in that case,
including Golden Pond, were subject to a navigational servitude. In its evaluation under the
Kaiser Aetna framework, the court considered whether: (1) “the waterway was navigable in its
natural state and is comparable to other waterbodies upon which the servitude has been
imposed”; (2) “is on private property and made navigable with private funds”; and (3) “was
made navigable by actions approved by the Corps of Engineers.”262 The Fifth Circuit held
Bayou Ferblanc and Bayou Rambo “were not naturally navigable,” and thus, “the public had
no right to their free use.” Addressing “the remaining waterbodies within the subject area,”
which included Golden Pond, the Fifth Circuit held that, even though Golden Pond is navigable
in fact, “the remaining Kaiser Aetna factors would militate against imposition of the servitude”:
The record clearly reflects that all of the remaining waterways at issue are
privately owned and that their owners exclude others from entry. The record
also reflects that the waterbodies presently navigable were not navigable in their
natural state. Finally, the improvements making these bodies navigable were
accomplished with private funds after receipt of approval from the Army Corps
of Engineers.263

Dardar I, 985 F.2d at 832 (citing Kaiser Aetna, 444 U.S. at 178–79).
Dardar II, 55 F.3d at 1085.
263 Id. at 1086.
261

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Based on these facts, the Fifth Circuit concluded that the “application of the Kaiser Aetna test
inexorably leads to the conclusion that the federal navigational servitude should not be
imposed on Golden Pond.”264
It appears from the face of the complaint that Plaintiffs’ maritime tort/negligence
claims are barred by collateral estoppel. 265 The Court finds the issues of whether Golden
Pond is accessible to the public because its bed is subject to the public trust doctrine and
whether its waters are encumbered by a federal navigational servitude are identical to the
issues before the Fifth Circuit in the Dardar litigation. Moreover, these issues were
actually litigated in Dardar, and the Fifth Circuit’s determination of those issues was a
critical and necessary part of its judgment. 266 As a result, Plaintiffs are precluded from
bringing their maritime tort claims based on the theory that they were wrongfully
excluded from a waterbody situated on a waterbed owned by the State and held in public
trust or that the waters of Golden Pond are accessible to the public by virtue of being
encumbered by a navigational servitude. 267 Bound by the Fifth Circuit’s factual findings
in Dardar, dismissal of Plaintiffs’ claims against the Castex Defendants is warranted by
reason of res judicata. 268 Accordingly, Plaintiffs’ maritime tort and negligence claims
against the Castex Defendants must be dismissed.

Id.
See Cade, 45 F. App’x at 323.
266 See Rabo Agrifinance, 583 F.3d at 353.
267 Plaintiffs also allege that private persons have a right to fish on any waters that are encumbered by a
Federal Navigational Servitude. This argument is expressly foreclosed by Parm, 513 F.3d at 142–45 (“[T]he
[federal] navigational servitude does not create a right to fish on private riparian land.”).
268 See Cade, 45 F. App’x at 323. Further, the doctrine of stare decisis applies with “special force” to
decisions affecting title to land. Confederated Salish and Kootenai Tribes v. Namen, 665 F.2d 951, 960 (9th
Cir. 1982). “Where questions arise which affect titles to land, it is of great importance to the public that,
when they are once decided, they should no longer be considered open. Such decisions become rules of
property, and many titles may be injuriously affected by their change . . . . Doubtful questions on subjects
of this nature when once decided, should be considered no longer doubtful or subject to change.” United
States v. Title Ins. Co., 265 U.S. 472, 486 (1924).
264
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B. Plaintiffs’ § 1983 Conspiracy Claim Against Plaisance
Plaintiffs allege Plaisance violated their constitutional rights by telling Plaintiffs to
leave the Castex property and subsequently “pursuing a complaint.” 269 According to
Plaintiffs’ amended complaint and supplemental memorandum, Plaisance “conspired
[with the Sheriff Defendants] under color of state law to deprive Plaintiffs of their rights,
privileges and immunities.” 270
For Plaintiffs to state a cause of action against Plaisance, a private actor, under § 1983,
they must allege that he, as a person who deprived them of a federal right, was acting under
color of state law.271 If Plaisance was a private citizen not acting under the color of state law at
the time he allegedly violated the Plaintiff’s constitutional rights, he still may have liability
under § 1983 if he conspired with or acted in concert with state actors.272 A non-state actor may
be liable under § 1983 if the private citizen was a “willful participant in joint activity with the
State or its agents.”273 Thus, Plaisance may be individually liable under § 1983 if he conspired
with the Sheriff Defendants to deprive Plaintiffs of their constitutional rights. To state a claim
for conspiracy under § 1983, Plaintiffs must allege: (1) an agreement between the private and
public defendants to commit an illegal act and (2) a deprivation of a constitutional right.274 To
establish the existence of a conspiracy, a plaintiff “must show that the defendants agreed to
commit an illegal act”275 and “allege specific facts to show [their] agreement.”276

R. Doc. 25 at ¶ 34.
Id. at ¶¶ 55, 56; see R. Doc. 65 at 9.
271 Priester v. Lowndes Cnty., 354 F.3d 414, 420 (5th Cir. 2004).
272 Id. (citing Cinel v. Connick, 15 F.3d 1338, 1342 (5th Cir. 1994)).
273 Cinel, 15 F.3d at 1343.
274 Priester, 354 F.3d at 420.
275 Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir. 1982); see also Hale v. Townley, 45 F.3d 914, 920–
21 (5th Cir. 1995); Manton v. Strain, No. 09-0339, 2010 WL 4364552, at *6 (E.D. La. Oct. 21, 2010).
276 Priester, 354 F.3d at 412.
269
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Plaintiffs argue that Plaisance acted under color of state law when he told Plaintiffs to
leave Golden Pond and subsequently notified the police of Plaintiffs’ alleged trespass. This
argument implies that the Sheriff’s Department’s role in issuing trespass warnings and
threatening arrest subjects a private citizen who reports a trespass to § 1983 liability. “This
bootstrap argument goes beyond that envisioned by the ‘joint activity’ test . . . . Neither ‘private
defendants’ misuse of a valid state statute’ nor ‘[p]olice reliance in making an arrest on
information given by a private party’ renders a private party a state actor.”277 Thus, the Court
finds Plaisance was not acting the under color of state law when he told Plaintiffs to leave what
Plaisance believed to be private property, nor was he acting as a state actor when he informed
the Sheriff’s Department of Plaintiffs’ alleged trespass.
Plaintiffs’ amended complaint is devoid of any allegations suggesting Plaisance agreed
to conspire with the Sheriff Defendants. Plaintiffs describe no communications that would
provide circumstantial evidence of an agreement.278 Construing the facts in the light most
favorable to Plaintiffs, the only contact the Court could presumably infer Plaisance had with
the Sheriff’s Department—and not even necessarily with the Sheriff Defendants themselves—
is that Plaisance contacted the Sheriff’s Department to “pursu[e] a complaint against Plaintiff
for trespassing.”279 Even if Plaisance contacted the Sheriff’s Department, this conduct is not
sufficient evidence of “an agree[ment] to commit an illegal act,”280 and without more, does not
make out an actionable § 1983 conspiracy claim. Accordingly, this claim is dismissed.

Blankenship, 653 F. App’x at 340 (quoting Daniel v. Ferguson, 839 F.2d 1124, 1130 (5th Cir. 1988)).
See generally R. Doc. 25.
279 Id. at ¶ 34.
280 Priester, 354 F.3d at 420.
277

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C. Plaintiffs’ Sherman Act Claims Against the Castex Defendants
The Court dismisses Plaintiffs’ Sherman Act Claims against the Castex Defendants for
the same reasons the Court dismissed Plaintiffs’ Sherman Act claims against the Sheriff
Defendants. 281
CONCLUSION
IT IS ORDERED that Defendants Sergeant Jeffery Prevost and Lafourche Parish
Sheriff Craig Webre’s motion for partial dismissal pursuant to Federal Rule of Civil Procedure
12(b)(6) is GRANTED.282 Plaintiffs’ federal law claims arising under 42 U.S.C. § 1983,
maritime tort, and 15 U.S.C. §§ 1, 13, 15 against Defendants Sergeant Jeffery Prevost and
Lafourche Parish Sheriff Craig Webre are hereby DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Defendants Castex Lafourche, LP and Glenn M.
Plaisance’s motion for partial dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) is
GRANTED.283 Plaintiffs’ federal law claims for maritime tort and those arising under 15
U.S.C. §§ 1, 13, 15 against Defendants Castex Lafourche, LP and Glenn M. Plaisance are hereby
DISMISSED WITH PREJUDICE. Plaintiffs’ 42 U.S.C. § 1983 conspiracy claim against
Defendant Glenn M. Plaisance is hereby DISMISSED WITH PREJUDICE.284
New Orleans, Louisiana, this 23rd day of March, 2018.
_____________________ ______
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

See the Court’s discussion supra notes 182–206.
R. Doc. 34.
283 R. Doc. 31.
284 The Court defers ruling on Plaintiffs’ state law claims.
281

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