Gressett v. New Orleans City et al
Filing
33
ORDER AND REASONS granting 7 Motion to Dismiss for Failure to State a Claim; denying 22 MOTION for APPEAL OF MAGISTRATE JUDGE DECISION to District Court. For the foregoing reasons, the City's motion to dismiss is GRANTED. Plaintiff's complaint is DISMISSED WITH PREJUDICE. Signed by Judge Sarah S. Vance on 8/1/2018. (cg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANDREW GRESSETT
CIVIL ACTION
VERSUS
NO. 17-16628
CITY OF NEW ORLEANS, ET AL.
SECTION “R” (2)
ORDER AND REASONS
The City of New Orleans moves to dismiss plaintiff’s complaint. 1 Pro
se plaintiff Andrew Gressett moves to set aside the Magistrate Judge’s order
denying leave to amend the complaint.2 For the following reasons, the Court
grants the City’s motion to dismiss and denies plaintiff leave to amend.
I.
BACKGROUND
This case arises out of alleged constitutional violations by a New
Orleans Police Department (NOPD) officer.
Plaintiff alleges that, on
November 11, 2016, an unidentified NOPD officer made “anti-Trump” and
“pro-Black” statements, including that, “[a]nyone that voted for Donald
Trump is a racist,” at a Waffle House in New Orleans.3 Plaintiff further
1
2
3
R. Doc. 7.
R. Doc. 22.
R. Doc. 1 at 4-5.
alleges that, on December 14, 2016, he was leaving the same Waffle House in
New Orleans when he noticed the same unidentified officer “lying in wait”
outside of the restaurant, standing between plaintiff and his vehicle. 4 The
unidentified officer was allegedly standing with one hand on his holstered
revolver and the other on his holstered Taser.5 Plaintiff alleges that he
stepped aside in an attempt to avoid the officer, but that the officer stepped
into his path and said, “[y]ou’re still being an [a]sshole.”6 Plaintiff alleges he
felt threatened and detained by the officer, but proceeded to his vehicle
without issue. 7
Plaintiff brought suit against the City of New Orleans, the unidentified
officer, and other unidentified law enforcement officers on December 11,
2017.8 The complaint asserts claims for violations of “federal civil rights
statutes” and for negligence.9 On March 26, 2018, the City moved to dismiss
the complaint under Federal Rules of Civil Procedure 12(b)(1), 12(b)(5), and
12(b)(6).10 Before responding to the City’s motion to dismiss, plaintiff sought
4
5
6
7
8
9
10
Id. at 5.
Id.
Id.
Id.
R. Doc. 1.
Id. at 2, 8-11.
R. Doc. 7.
2
leave to amend his complaint. 11 The Magistrate Judge denied this motion on
May 2, 2018.12 Plaintiff then responded to the City’s motion to dismiss and
filed an objection to the Magistrate Judge’s order.13
II.
DISCUSSION
The City moves to dismiss plaintiff’s complaint under Rules 12(b)(1),
12(b)(5), and 12(b)(6).
A.
Rule 12(b)(1)
Rule 12(b)(1) requires dismissal of an action if a court lacks jurisdiction
over the subject matter of the plaintiff’s claim. When a Rule 12(b)(1) motion
is filed in conjunction with other Rule 12 motions, subject matter jurisdiction
must be decided first because “the court must find jurisdiction before
determining the validity of a claim.” Moran v. Kingdom of Saudi Arabia, 27
F.3d 169, 172 (5th Cir. 1994) (quoting Gould, Inc. v. Pechiney Ugine
Kuhlmann, 853 F.2d 445, 450 (6th Cir. 1988)). In ruling on a Rule 12(b)(1)
motion to dismiss, the court may rely on (1) the complaint alone, presuming
the allegations to be true; (2) the complaint supplemented by undisputed
facts; or (3) the complaint supplemented by undisputed facts and by the
11
12
13
R. Doc. 12.
R. Doc. 20
R. Docs. 21, 22.
3
court’s resolution of disputed facts. Den Norske Stats Oljeselskap As v.
HeereMac Vof, 241 F.3d 420, 424 (5th Cir. 2001); see also BarreraMontenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996).
Plaintiff’s original complaint alleges violations of “federal civil rights
statutes and jurisprudence protecting individuals from threats, intimidation,
injury, losses and damages.”14 He alleges that he felt “detained” by the NOPD
officer during the December 14, 2016 incident, and mentions the officer’s use
of “excessive force.” 15
These claims sound in the Fourth Amendment.
Additionally, plaintiff clarifies in his opposition to the City’s motion to
dismiss that his complaint alleges violations of 42 U.S.C. § 1983 and 18 U.S.C.
§ 2261A (a statute that criminalizes stalking). These claims therefore arise
under federal law. See 28 U.S.C. § 1331. Additionally, the Court may exercise
supplemental jurisdiction over plaintiff’s state law negligence claims. See 28
U.S.C. § 1367. Thus, the Court has subject matter jurisdiction over this
matter.
B.
Rule 12(b)(5)
Rule 12(b)(5) governs insufficient service of process. After the City
moved to dismiss plaintiff’s original complaint, plaintiff sought and obtained
14
15
R. Doc. 1 at 2.
Id. at 5, 9-10.
4
leave to complete service of process on the City.16 Plaintiff obtained a waiver
of service on April 6, 2018.17 The City’s Rule 12(b)(5) motion is therefore
moot.
C.
Rule 12(b)(6)
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead
“sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially
plausible when the plaintiff pleads facts that allow the court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Id. A court must accept all well-pleaded facts as true and must draw all
reasonable inferences in favor of the plaintiff. See Lormand v. U.S. Unwired,
Inc., 565 F.3d 228, 232 (5th Cir. 2009).
A legally sufficient complaint must establish more than a “sheer
possibility” that the plaintiff’s claim is true. Iqbal, 556 U.S. at 678. It need
not contain detailed factual allegations, but it must go beyond labels, legal
conclusions, or formulaic recitations of the elements of a cause of action. Id.
In other words, the face of the complaint must contain enough factual matter
16
17
R. Doc. 11.
R. Doc. 14.
5
to raise a reasonable expectation that discovery will reveal relevant evidence
of each element of the plaintiff’s claim. Lormand, 565 F.3d at 257. The claim
must be dismissed if there are insufficient factual allegations to raise a right
to relief above the speculative level, Twombly, 550 U.S. at 555, or if it is
apparent from the face of the complaint that there is an insuperable bar to
relief, Jones v. Bock, 549 U.S. 199, 215 (2007).
Courts “liberally construe briefs of pro se litigants and apply less
stringent standards to parties proceeding pro se than to parties represented
by counsel.” Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995) (per curiam).
This does not mean, however, that a court “will invent, out of whole cloth,
novel arguments on behalf of a pro se plaintiff in the absence of meaningful,
albeit imperfect, briefing.” Jones v. Alfred, 353 F. App’x. 949, 952 (5th Cir.
2009). Even a liberally construed pro se complaint “must set forth facts
giving rise to a claim on which relief may be granted.” Johnson v. Atkins,
999 F.2d 99, 100 (5th Cir. 1993).
As noted earlier, plaintiff has brought claims under 42 U.S.C. § 1983,
18 U.S.C. § 2261A, and state law negligence. The Court addresses each set of
claims in turn.
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1.
Section 1983
“Section 1983 affords a private cause of action to any party deprived of
a constitutional right under color of state law.” Tex. Manufactured Hous.
Ass’n, Inc. v. City of Nederland, 101 F.3d 1095, 1106 (5th Cir. 1996). Plaintiff
argues in his opposition to the City’s motion to dismiss that the NOPD officer
violated plaintiff’s rights under the Fourth, Eighth, and Fourteenth
Amendments.18
As an initial matter, plaintiff’s claims related to the first incident
alleged in the original complaint are prescribed. Although Section 1983
contains no express limitations period, courts apply the statute of limitations
for the analogous state law action—here, the one-year prescriptive period for
Louisiana torts. See Helton v. Clements, 832 F.2d 332, 334 (5th Cir. 1987).
The incident involving the NOPD officer’s statement that “[a]nyone that
voted for Donald Trump is a racist” allegedly occurred on November 11, 2016,
shortly after the 2016 presidential election. 19 Plaintiff filed suit on December
11, 2017, more than one year after this incident allegedly occurred.
R. Doc. 21 at 5-7. Although plaintiff’s complaint states that the two
interactions with the unnamed NOPD officer occurred on November 11,
2016, and December 14, 2016, plaintiff’s opposition uses various different
dates—October 24 and November 11, 2017, for the first incident, and
November 17, December 14, and December 17, 2017, for the second incident.
The Court uses the dates provided in plaintiff’s complaint.
19
R. Doc. 1 at 4.
18
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Additionally, plaintiff fails to allege any relationship between this incident
and the later incident that could plausibly support a continuing tort theory.
Moreover, even if plaintiff’s claims related to the officer’s statement during
the first incident were not prescribed, it is unclear how this statement
affected plaintiff’s Fourth, Eighth, or Fourteenth Amendment rights. Thus,
plaintiff’s allegations regarding the November 11, 2016 incident do not
support the plausible inference that plaintiff’s constitutional rights were
violated, and any claims related to this incident must be dismissed.
The second incident described in plaintiff’s original complaint
allegedly occurred on December 14, 2016. 20
Thus, plaintiff’s claims
stemming from this incident were timely filed.
Plaintiff primarily argues that the NOPD officer’s actions during the
second incident violated plaintiff’s Fourth Amendment right to be free from
unreasonable searches and seizures. 21 But plaintiff fails to plausibly allege
that he was “seized” by the unidentified officer, as required to set out a
violation of the Fourth Amendment. See Terry v. Ohio, 392 U.S. 1, 16 (1968)
(“[T]he Fourth Amendment governs ‘seizures’ of the person . . . .”). “[A]
person has been ‘seized’ within the meaning of the Fourth Amendment only
20
21
R. Doc. 1 at 5.
R. Doc. 21 at 5-6.
8
if, in view of all of the circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave.” United States v.
Mendenhall, 446 U.S. 544, 554 (1980).
According to plaintiff, the
unidentified officer momentarily stepped into plaintiff’s path as he was
walking from the Waffle House to his vehicle.22 While plaintiff alleges that
he felt detained,23 he never asserts that he was not free to leave. On the
contrary, plaintiff states that he walked away and got in his vehicle after the
officer stepped into his path. 24 These facts do not support the plausible
inference that a reasonable person in plaintiff’s position would have believed
that he was not free to leave. Cf. Mendenhall, 446 U.S. at 554 (“Examples of
circumstances that might indicate a seizure, even where the person did not
attempt to leave, would be the threatening presence of several officers, the
display of a weapon by an officer, some physical touching of the person of the
citizen, or the use of language or tone of voice indicating that compliance
with the officer’s request might be compelled.”). Thus, plaintiff fails to allege
a cause of action under Section 1983 for a violation of his Fourth Amendment
rights.
22
23
24
R. Doc. 1 at 5.
Id.
Id.
9
Plaintiff’s argument that the unidentified officer violated his Eighth
Amendment right to be free from cruel and unusual punishment similarly
fails. The Eighth Amendment applies only to plaintiffs who have been
convicted of a crime. See Lynch v. Cannatella, 810 F.2d 1363, 1375 (5th Cir.
1987). Plaintiff does not sufficiently allege that he was even seized, let alone
convicted of a crime. Thus, plaintiff has no claim for a violation of his Eighth
Amendment rights.
Finally, plaintiff argues that the NOPD officer’s actions deprived
plaintiff of his liberty, without due process of law, in violation of the
Fourteenth Amendment. 25 Abuse of authority by law enforcement personnel
may violate substantive due process under certain circumstances. See, e.g.,
Petta v. Rivera, 143 F.3d 895 (5th Cir. 1998). To establish such a violation,
a plaintiff must show that the defendant’s actions (1) injured the plaintiff,
(2) “were grossly disproportionate to the need for action under the
circumstances,” and (3) “were inspired by malice rather than merely careless
or unwise excess of zeal so that it amounted to an abuse of official power that
shocks the conscience.” Petta v. Rivera, 143 F.3d 895, 902 (5th Cir. 1998).
Plaintiff alleges that the unidentified officer stepped into his path, with one
hand on his holstered gun and the other on his holstered Taser, and said,
25
R. Doc. 21 at 7.
10
“[y]ou’re still being an [a]sshole.” 26 Without more, these allegations do not
permit the plausible inference that the officer’s conduct was “an abuse of
official power that shocks the conscience” in violation of the Fourteenth
Amendment. Petta, 143 F.3d at 902. Plaintiff’s Fourteenth Amendment
claim therefore fails. Because plaintiff fails to allege any underlying violation
of a constitutional right, he fails to state any Section 1983 municipal liability
claim against the City. See Rivera v. Houston Indep. Sch. Dist., 349 F.3d
244, 247 (5th Cir. 2003) (“Municipal liability under 42 U.S.C. § 1983 requires
proof of 1) a policymaker; 2) an official policy; 3) and a violation of
constitutional rights whose ‘moving force’ is the policy or custom.” (citation
omitted)). Plaintiff’s Section 1983 claims must be dismissed.
2.
Section 2261A
Plaintiff attempts to assert a cause of action under 18 U.S.C. § 2261A,
which criminalizes stalking. 27 To state a civil claim under a criminal statute,
there must be “a statutory basis for inferring that a civil cause of action of
some sort [lies] in favor of someone.” Cort v. Ash, 422 U.S. 66, 79 (1975); Ali
v. Shabazz, 8 F.3d 22 (5th Cir. 1993) (unpublished table decision). Nothing
in the text of Section 2261A suggests that the statute creates a civil cause of
26
27
R. Doc. 1 at 5.
R. Doc. 21 at 4.
11
action. See Fox v. Tippetts, No. 09-485, 2009 WL 3790173, at *4 (W.D. La.
Nov. 10, 2009) (“Nothing in § 2261A indicates that it is more than a ‘bare
criminal statute.’” (quoting Cort, 422 U.S. at 79-80)); see also Rock v. BAE
Sys., Inc., 556 F. App’x. 869, 871 (11th Cir. 2014); Haffke v. Discover Fin.
Servs., No. 10-276, 2010 WL 3430843, at *2 (E.D. Tex. Aug. 3, 2010), report
and recommendation adopted, 2010 WL 3430838 (E.D. Tex. Aug. 27, 2010).
Accordingly, plaintiff cannot bring a cause of action against the City under
Section 2261A.
3.
Negligence
Finally, plaintiff’s complaint fails to state a claim for negligence. Under
Louisiana law, “[e]very act . . . of man that causes damage to another obliges
him by whose fault it happened to repair it.” La. Civ. Code art. 2315. To
establish negligence, a plaintiff must show:
first, that the defendant had a duty to conform his conduct to a
specific standard (duty); second, that the defendant’s conduct
failed to conform to the appropriate standard (breach); third,
that the defendant’s substandard conduct was a cause in fact of
the plaintiff’s injuries (cause in fact); fourth, that the defendant’s
substandard conduct was a legal cause of the plaintiff’s injuries
(legal cause); and fifth, that the plaintiff suffered actual damages
(damages).
Duncan v. Wal-Mart Louisiana, L.L.C., 863 F.3d 406, 409 (5th Cir. 2017).
Plaintiff fails to allege the “specific standard” to which the City was obliged
to conform its conduct. Instead, plaintiff vaguely asserts that the City
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“negligently . . . allow[ed] the wrongful and emotional attack upon” plaintiff,
and “allow[ed] the negligent . . . wrongful intimidation, pattern of stalking .
. . and harassment” of plaintiff. 28 These allegations do not suffice to raise a
plausible inference of negligence by the City.
D.
Leave to Amend
As noted earlier, plaintiff moved for leave to amend after the City filed
its motion to dismiss. Plaintiff’s motion was referred to the Magistrate
Judge, who denied leave to amend because amendment would be futile. 29
Plaintiff filed a timely objection to the Magistrate Judge’s ruling. 30
A party may appeal a magistrate judge’s order to the district court. Fed.
R. Civ. P. 72(a). When a timely objection is raised, the district court will
“modify or set aside any part of the order that is clearly erroneous or is
contrary to law.” Id.; see also 28 U.S.C. § 636(b)(1)(A). The court reviews
the magistrate judge’s “‘factual findings under a clearly erroneous standard,’
while ‘legal conclusions are reviewed de novo.’” Moore v. Ford Motor Co.,
755 F.3d 802, 806 (5th Cir. 2014) (quoting Alldread v. City of Grenada, 988
F.2d 1425, 1434 (5th Cir. 1993)). A factual “finding is ‘clearly erroneous’
when although there is evidence to support it, the reviewing court on the
28
29
30
R. Doc. 1 at 9-10.
R. Doc. 20.
R. Doc. 22.
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entire evidence is left with the definite and firm conviction that a mistake has
been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395
(1948).
Plaintiff’s proposed amended complaint adds Orleans Parish Sheriff
Marlin Gusman and Jefferson Parish Sheriff Joseph Lopinto (as well as
unidentified sheriff’s deputies) as defendants.31 The proposed amended
complaint also specifically pleads violations of plaintiff’s Fourth Amendment
rights under 42 U.S.C. § 1983 and violations of 18 U.S.C. § 2261A. 32 Finally,
plaintiff significantly expands his stalking claim by listing seventeen specific
instances—stretching back to the year 2000—of alleged stalking by law
enforcement personnel. 33
The Court will “freely give leave [to amend] when justice so requires.”
Fed. R. Civ. P. 15(a). The Supreme Court has held that “[i]f the underlying
facts or circumstances relied upon by a plaintiff may be a proper subject of
relief, he ought to be afforded an opportunity to test his claim on the merits.”
Foman v. Davis, 371 U.S. 178, 182 (1962). Additionally, “a court should grant
a pro se party every reasonable opportunity to amend.” Hale v. King, 642
F.3d 492, 503 n.36 (5th Cir. 2011) (quoting Pena v. United States, 157 F.3d
31
32
33
R. Doc. 12-2 at 5-6.
R. Doc. 12-2 at 3.
R. Doc. 12-2 at 6-7, 11-21.
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984, 987 n.3 (5th Cir. 1998)).
But leave to amend “is by no means
automatic.” Halbert v. City of Sherman, 33 F.3d 526, 529 (5th Cir. 1994).
The Court considers multiple factors, including “undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, [and] futility of
amendment.” Foman, 371 U.S. at 182.
The Magistrate Judge correctly found that amendment would be futile
because plaintiff’s proposed amended complaint does not state a claim for
which relief may be granted. First, plaintiff’s Fourth Amendment claim
under Section 1983 fails because plaintiff’s additional allegations do not
describe any seizure by law enforcement personnel. Second, plaintiff’s
Section 2261A claim fails because, as explained earlier, that provision does
not create a private cause of action. Third, plaintiff’s negligence claims fail
because the additional allegations still fail to specify the duty allegedly
breached by defendants.
In his objection to the Magistrate Judge’s order, plaintiff also cites the
Fourteenth Amendment.
As noted earlier, abuse of authority by law
enforcement personnel may violate substantive due process if the conduct is
sufficiently extreme. See Petta, 143 F.3d at 902. But the incidents described
15
in plaintiff’s amended complaint simply do not describe a pattern of
harassment or stalking that “shocks the conscience.” Id. For the most part,
the alleged incidents merely involve law enforcement personnel observing
plaintiff in public places. Such conduct does not violate the Fourteenth
Amendment.
Cf. Phillips v. City of San Jose, No. 94-20468, 1994 WL
706213, at *4 (N.D. Cal. Dec. 13, 1994) (“Allegations that the police officers
followed and observed plaintiffs in public areas are not sufficiently egregious
to constitute a due process violation.”).
Additionally, the amended
complaint provides no factual basis to plausibly infer that these disparate
incidents were connected in any way. Thus, plaintiff’s amended complaint
fails to state a claim upon which relief may be granted, and amendment
would be futile.
III. CONCLUSION
For the foregoing reasons, the City’s motion to dismiss is GRANTED.
Plaintiff’s complaint is DISMISSED WITH PREJUDICE.
1st
New Orleans, Louisiana, this ______ day of August, 2018.
___________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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