Heintz v. Lawson et al

Filing 21

ORDER: IT IS HEREBY ORDERED that Defendants' 6 Motion to Dismiss is GRANTED INPART to the extent that Plaintiff's Section 1983 claims against Lawson and Christiana based on a theory of respondeat superior and in their official capacity, P laintiff's Louisiana Whistleblower Act claims against Lawson and Christiana, and Plaintiff's request for punitive damages against the City of Gretna are DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that the Motion to Dismiss is DENIED in all other respects. Plaintiff is granted leave to file a Rule 7(a)(7) reply as to Plaintiff's Section 1983 claims against Lawson and Christiana in their individual capacities and to amend the complaint withinfourteen days of this Order to cure the deficiencies noted, if possible. Signed by Chief Judge Nannette Jolivette Brown on 1/7/2019. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DAVID HEINTZ

CIVIL ACTION

VERSUS

CASE NO. 18-366

ARTHUR LAWSON, et al.

SECTION: “G”(1)
ORDER

Pending before the Court is Defendants’ Motion to Dismiss.1 In this litigation, Plaintiff
David Heintz (“Plaintiff”), a former Gretna police officer, asserts claims against the following
Defendants: the City of Gretna; Arthur Lawson (“Lawson”), the Chief of the Gretna Police
Department; and Anthony Christiana (“Christiana”), the Deputy Chief of the Gretna Police
Department (collectively, “Defendants”). 2 Plaintiff claims that Defendants disciplined and
discriminated against him for failing to comply with the Gretna Police Department’s quota system,
ultimately leading to Plaintiff’s constructive discharge.3 Plaintiff brings claims for violations of
his First Amendment rights pursuant to 42 U.S.C. § 1983 against the City of Gretna and against
Lawson and Christiana in their individual and official capacities. Plaintiff also claims that
Defendants violated Louisiana Revised Statute 23:967, which prohibits employer retaliation
against whistleblowers, by constructively discharging him for speaking out against the allegedly
unlawful quota system. 4 Having considered the motion, the memoranda in support and in

1

Rec. Doc. 6.

2

Rec. Doc. 1 at 1–2.

3

Id. at 2–5.

4

Id. at 8–10.

1

opposition, and the applicable law, the Court will grant the motion in part, deny the motion in part,
and grant Plaintiff leave to amend the complaint and file a Rule 7(a)(7) reply.
I. Background
A.

Factual Background
According to the Complaint, Plaintiff was employed as a police officer with the Gretna

Police Department from April 2006 until January 13, 2017, when he resigned as sergeant within
the Patrol Division.5 Plaintiff claims that an “arrest and citation quota system” has been in place
within the Gretna Police Department since at least 2007.6 Plaintiff claims that as part of his duties
as a supervisory official, he was directed to issue formal disciplinary actions in the form of “writeups” to patrol officers for “unsatisfactory performance” when these officers would fail to meet the
departmental quota.7 Plaintiff claims that at the time he was employed by the City of Gretna, he
was aware that departmental quotas were illegal for police officers.8
Plaintiff claims that he was “twice issued discipline in the form of a write up for
unsatisfactory performance for failure to meet the department quota.”9 Plaintiff also claims that
he refused to issue discipline to his patrol officers for failure to adhere to the departmental quota
policy.10 Plaintiff claims that he spoke out against the policy multiple times with individuals both

5

Rec. Doc. 1 at 2–3.

6

Id. at 3.

7

Id. at 3–4.

8

Id. at 5.

9

Id. at 4.

10

Id. at 5.

2

inside and outside of the Department, including Christiana directly.11 Plaintiff claims that due to
his outspokenness against the quota policy, he was passed up for promotion multiple times,
reassigned to a less prestigious and lucrative position, and received a poor performance review.12
Specifically, Plaintiff alleges he was told he was not a “team player” and was labeled as a “rat” in
a division meeting.13 Plaintiff claims that his resignation was ultimately a result of a constructive
discharge and that he left the Department because he was afraid he would be terminated, which
would detrimentally impact his future career in law enforcement.14
B.

Procedural Background
Plaintiff filed a Complaint on January 11, 2018, alleging that Defendants violated his First

Amendment rights and Louisiana whistleblower laws.15 Defendants filed the instant Motion to
Dismiss Plaintiff’s claims pursuant to Rule 12(b)(6) on May 4, 2018.16 Plaintiff filed an opposition
on May 15, 2018.17 Defendants filed a reply brief, with leave of Court, on May 22, 2018.18
II. Parties’ Arguments
A.

Defendants’ Arguments in Support of the Motion to Dismiss
In the Motion to Dismiss, Defendants state the Court should dismiss the case for failure to

11

Id. at 6–7.

12

Id. at 7–8.

13

Id. at 5.

14

Id. at 3.

15

Rec. Doc. 1.

16

Rec. Doc. 6.

17

Rec. Doc. 10.

18

Rec. Doc. 13.

3

state a claim upon which relief can be granted.19 Specifically, Defendants allege five reasons that
the Court should grant the Motion to Dismiss.
First, Defendants concede that the Complaint sufficiently states a claim regarding the City
of Gretna, but Defendants contend that the Complaint contains no specific allegations whatsoever
that any action of either Lawson or Christiana violated Plaintiff’s First Amendment rights. 20
Therefore, Defendants assert that Plaintiff’s claims against Lawson or Christiana should be
dismissed because Plaintiff does not allege any facts which could give rise to a claim against
them.21
Second, Defendants claim that Lawson and Christiana are entitled to qualified immunity
in their individual capacities. 22 Defendants argue that the two-part framework for analyzing
whether a defendant is entitled to qualified immunity applies: (1) do the facts alleged show the
officer’s conduct violated a constitutional right, and (2) was the constitutional right clearly
established in that it would be clear and reasonable to an officer that his or her conduct violated
that right. 23 Defendants assert that Lawson and Christiana are entitled to qualified immunity
because there are no factual allegations raised in the Complaint to show they were involved in any

19

Rec. Doc. 6.

20

Rec. Doc. 6-1 at 2.

21

Id. at 3.

22

Id. at 3–7.

23

Id. at 4.

4

alleged violation of Plaintiff’s constitutional rights.24
Third, Defendants claim that respondent superior is not a viable legal theory with which to
hold Lawson and Christiana liable, and thus recovery is precluded under 42 U.S.C. § 1983.25
Specifically, Defendants claim that an individual official or supervisor cannot be held liable for a
government policy that denies a plaintiff certain rights if that official is not personally responsible
for the implementation of that policy in some specifically articulated way.26
Fourth, Defendants claim that the official capacity claims against Lawson and Christiana
are duplicative of the same claims brought against the City of Gretna for the implementation of
the alleged policy and thus are prohibited by law.27 Relatedly, Defendants claim that Section 1983
does not allow for the recovery of punitive damages in this case because the claims brought against
the individual defendants and the City of Gretna are the same, and punitive damages are not
awarded for claims brought against government entities.28
Fifth, Defendants claim that Lawson and Christiana cannot be liable under the Louisiana
Whistleblower Act, Louisiana Revised Statute 23:967.29 Defendants claim that the Court should
interpret the term “employer” to refer to the City of Gretna, but not the individuals at issue in this

24

Id. at 5.

25

Id.

26

Id. at 6.

27

Id. at 7.

28

Id. at 8.

29

Id.

5

case, and that the Louisiana Whistleblower Act only applies to employers.30
B.

Plaintiff’s Arguments in Opposition to the Motion to Dismiss
In opposition, Plaintiff reasserts that the Complaint satisfies the pleading requirements as

related to all Defendants.31 Plaintiff argues that for his claim to survive the Motion to Dismiss he
must “establish that the defendant was either personally involved in the deprivation or that his
wrongful actions were casually connected to the deprivation.”32 Plaintiff claims he has met this
standard by alleging that both individual defendants, Lawson and Christiana, “had the authority to
issue adverse employment action against Plaintiff.”33 Plaintiff then repeats his assertion from the
Complaint that the Gretna Police Department had a “longstanding policy of implementing a quota
system.”34 In regards to Lawson specifically, Plaintiff claims that Lawson issued a directive to
Plaintiff “to formally discipline patrol officers for failing to meet the department’s quota system.”35
In regards to Christiana specifically, Plaintiff claims that he “spoke out against the quota system”
to Christiana and that “within a week or two after speaking to [Christiana], plaintiff was subject to
transfer and demotion…[and] criminal investigation for reporting police brutality.” 36 Plaintiff
further alleges that Lawson and Christiana “were the two highest ranking officers in the Gretna
Police Department who had the authority to take adverse employment action against Plaintiff” and

30

Id. at 9.

31

Rec. Doc. 10 at 6.

32

Id. (quoting Jones v. Lowndes County, 678 F.3d 344, 349 (5th Cir. 2012) (internal citation omitted)).

33

Id.

34

Id. at 7.

35

Id.

36

Id.

6

were both aware of Plaintiff’s opposition to the quota system.37 In the alternative, if the Court
determines a need for more specificity, Plaintiff requests that the Court allow him to amend his
complaint to cure any deficiencies.38
Next, Plaintiff argues that Lawson and Christiana are not entitled to qualified immunity
because they were “aware” that he spoke against the quota system and “in retaliation for this
constitutionally protected speech…[they] took adverse employment action against plaintiff.” 39
Further, Plaintiff argues that the municipality is not sheltered from the actions of the individual
policymakers because “particular officers may have authority to establish binding county policy
respecting particular matters and to adjust that policy for the county in changing circumstances.”40
Plaintiff claims that “it was held that municipal liability under § 1983 attaches where a deliberate
choice to follow a course of action is made from among various alternative [sic] by the official or
officials responsible for establishing final policy with respect to the subject matter in question.”41
Therefore, Plaintiff claims that municipal liability is appropriate where the officials knew or should
have known an illegal quota policy was in place and the officials at issue here had the authority to
discipline or promote officers based on participation in the system.42
Regarding the duplicative nature of official capacity claims brought against individuals and

37

Id. at 7–8.

38

Id. at 8.

39

Id. at 11.

40

Id. at 14.

41

Id. (citing City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985)).

42

Id. at 16.

7

those claims brought against the City of Gretna, Plaintiff argues that “[t]o the extent that this
Honorable Court finds that those claims are duplicative, defendants’ assert[ions] are likely correct
as [to] those particular claims only.” 43 And relatedly, regarding punitive damages, Plaintiff
concedes that punitive damages are only appropriate against individual defendants and not the
municipality in this case.44
Finally, regarding the Louisiana Whistleblower Act claim, Plaintiff argues that Lawson
and Christiana are “employers” for the purposes of the present case. 45 Plaintiff asserts that
Louisiana state courts have held “that a police chief was an employer of one of his police officers
for the purposes of the Whistleblower statute.” 46 Plaintiff claims that the important factor to
consider in determining an employer relationship is “the right of control and supervision over an
individual,” which resided in Lawson and Christiana here.47 For these reasons, Plaintiff asserts
that the Motion to Dismiss should be denied or, alternatively, Plaintiff should be granted an
opportunity to amend the Complaint.48
C.

Defendants’ Arguments in Further Support of the Motion to Dismiss
In further support of the Motion to Dismiss, Defendants argue that Plaintiff has failed to

present factually sufficient allegations to show that Lawson or Christiana “[were] personally

43

Id. at 19.

44

Id. at 17.

45

Id.

46

Id. (citing Ray v. City of Bossier City, 859 So.2d 264, 272 (La.App. 2 Cir. 10/24/03)).

47

Id. at 18.

48

Id. at 19.

8

involved in the deprivation or that [their] wrongful actions were casually [sic] connected to the
deprivation.”49 Defendants argue that Plaintiff’s references to the actions and directives of Lawson
and Christiana in the current motion and supporting documents are not supported by the
Complaint.50 Defendants argue that “there are no facts that his ‘demotion’, which is unsupported
because he retained the rank of sergeant, and his involvement in a criminal investigation had
anything whatsoever to do with him speaking out or that Arthur Lawson and/or Anthony
Christiana, individually, participated in this alleged adverse employment action as a result of his
exercising his First Amendment right.”51 Further, Defendants claim that even if the Court were to
grant leave to amend the complaint, the proposed amendments would not cure its deficiencies.52
Defendants claim that Plaintiff has not and cannot meet his burden to plead facts that would
overcome qualified immunity.53 Relatedly, Defendants claim that Plaintiff’s arguments relying on
Monell liability are misplaced and should be decided in regards to the City of Gretna at a later
time.54 Finally, in regards to the Louisiana Whistleblower Act and the definition of an “employer,”
Defendants argue that Lawson and Christiana are agents of the City of Gretna, while the city

49

Rec. Doc. 13 at 2 (quoting Jones v. Lowndes County, 678 F.3d 344, 349 (5th Cir. 2012)).

50

Id. at 3–5.

51

Id. at 5.

52

Id.

53

Id. at 7–9.

54

Id. at 7, 9.

9

remains the employer itself.55
III. Legal Standard
A.

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

failure to state a claim upon which relief can be granted.”56 A motion to dismiss for failure to state
a claim is “viewed with disfavor and is rarely granted.”57 “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that
is plausible on its face.’”58 “Factual allegations must be enough to raise a right to relief above the
speculative level.”59 A claim is facially plausible when the plaintiff has pleaded facts that allow
the court to “draw a reasonable inference that the defendant is liable for the misconduct alleged.”60
On a motion to dismiss, asserted claims are liberally construed in favor of the claimant,
and all facts pleaded are taken as true.61 However, although required to accept all “well-pleaded
facts” as true, a court is not required to accept legal conclusions as true.62 “While legal conclusions
can provide the framework of a complaint, they must be supported by factual allegations.” 63

55

Id. at 9–10.

56

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

57

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

58

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

59

Twombly, 550 U.S. at 556.

60

Id. at 570.

61

Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); see
also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322–23 (2007).
62

Iqbal, 556 U.S. at 677–78.

63

Id. at 679.

10

Similarly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements” will not suffice.64 The complaint need not contain detailed factual allegations, but it
must offer more than mere labels, legal conclusions, or formulaic recitations of the elements of a
cause of action.65 That is, the complaint must offer more than an “unadorned, the defendantunlawfully-harmed-me accusation.” 66 From the face of the complaint, there must be enough
factual matter to raise a reasonable expectation that discovery will reveal evidence as to each
element of the asserted claims.67 If factual allegations are insufficient to raise a right to relief above
the speculative level, or if it is apparent from the face of the complaint that there is an “insuperable”
bar to relief, the claim must be dismissed.68
B.

Qualified Immunity
To plead a Section 1983 claim, Plaintiff is required to allege facts demonstrating that (1)

the defendant violated the Constitution or federal law, and (2) that the defendant was acting under
the color of state law while doing so.69
The doctrine of qualified immunity protects government officials sued in their individual
capacities “from liability for civil damages insofar as their conduct does not violate clearly

64

Id. at 678.

65

Id.

66

Id.

67

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

68

Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 2007); Moore v. Metro. Human Serv. Dep’t, No. 096470, 2010 WL 1462224, at * 2 (E.D. La. Apr. 8, 2010) (Vance, J.) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)).
69

See Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 252–53 (5th Cir. 2005).

11

established statutory or constitutional rights of which a reasonable person would have known.”70
Qualified immunity is an “immunity from suit rather than a mere defense to liability.”71 In this
manner, “[o]ne of the most salient benefits of qualified immunity is protection from pretrial
discovery, which is costly, time-consuming, and intrusive.” 72 Once a defendant invokes the
defense of qualified immunity, the plaintiff carries the burden of demonstrating its
inapplicability.73
In Saucier v. Katz, the Supreme Court set forth a two-part framework for analyzing whether
a defendant was entitled to qualified immunity.74 Part one asks the following question: “Taken in
the light most favorable to the party asserting the injury, do the facts alleged show the officer’s
conduct violated a constitutional right?”75 Part two inquires into whether the allegedly violated
right is “clearly established” in that “it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.”76 The Court does not have to address these two questions
sequentially; it can proceed with either inquiry first.77

70

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

71

Pearson v. Callahan, 555 U.S. 223, 237 (2009).

72

Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012).

73

Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009).

74

533 U.S. 194 (2001).

75

Id. at 201.

76

Id. at 202.

77

See Pearson, 555 U.S. at 236 (“On reconsidering the procedure required in Saucier, we conclude that,
while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory.”); see also
Cutler v. Stephen F. Austin State Univ., 767 F.3d 462, 469 (5th Cir. 2014).

12

“If the defendant’s actions violated a clearly established constitutional right, the court then
asks whether qualified immunity is still appropriate because the defendant’s actions were
‘objectively reasonable’ in light of ‘law which was clearly established at the time of the disputed
action.’”78 Officials “who reasonably but mistakenly commit a constitutional violation are entitled
to immunity.”79
In the context of a motion to dismiss, “a district court must first find ‘that the plaintiff’s
pleadings assert facts which, if true, would overcome the defense of qualified immunity.’” 80
“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.”81 After the district court
determines that plaintiff’s pleadings meet this requirement, “if the court remains ‘unable to rule
on the immunity defense without further clarification of the fact,’ it may issue a discovery order
‘narrowly tailored to uncover only those facts needed to rule on the immunity claim.’”82
IV. Analysis
Plaintiff claims that Defendants disciplined him and discriminated against him for failing
to comply with the Department’s quota system, ultimately leading to Plaintiff’s constructive

78

Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010) (citing Williams v. Bramer, 180 F.3d 699, 703
(5th Cir. 1999)).
79

Williams, 180 F.3d at 703 (quoting Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 490 (5th Cir.

80

Backe, 691 F.3d at 648 (quoting Wicks v. Miss. State Emp’t Servs., 41 F.2d 991, 994 (5th Cir. 1995)).

81

Id. at 645.

82

Id. (quoting Lion Boulos v. Wilson, 834 F.2d 504, 506 (5th Cir. 1987).

2001)).

13

discharge.83 Plaintiff brings claims for violations of his First Amendment rights pursuant to 42
U.S.C. § 1983 against the City of Gretna and against Lawson and Christiana in their individual
and official capacities. Plaintiff also claims that Defendants violated Louisiana Revised Statute
23:967, which prohibits employer retaliation against whistleblowers, by constructively
discharging him for speaking out against the allegedly unlawful quota system. 84 Defendants
contend that Plaintiff’s Section 1983 claims against both Lawson and Christiana in their individual
and official capacities should be dismissed.85 Defendants also seek dismissal of Plaintiff’s request
for punitive damages under Section 1983.86 Finally, Defendants argue that Plaintiff’s Louisiana
Whistleblower Act claims against Lawson and Christiana should be dismissed.87 Accordingly, the
Court will address each of these claims in turn.
A.

Plaintiff’s Section 1983 claims
Defendants contend that Plaintiff’s Section 1983 claims against both Lawson and

Christiana in their individual and official capacities should be dismissed.88 Defendants also seek
dismissal of Plaintiff’s request for punitive damages under Section 1983.89 Plaintiff opposes the
motion to the extent it seeks dismissal of his Section 1983 claims against Lawson and Christiana

83

Rec. Doc. 1 at 2–5.

84

Id. at 8–10.

85

Rec. Doc. 6-1 at 1–7.

86

Id. at 7–8.

87

Id. at 8–9.

88

Rec. Doc. 6-1 at 1–7.

89

Id. at 7–8.

14

in their individual capacities and the Louisiana Whistleblower Act claims.90 However, Plaintiff
does not appear to contest Defendants’ assertion that the official capacity claims against Lawson
and Christiana are duplicative of the claims against the City of Gretna.91 Plaintiff also does not
contest that punitive damages are not available against the City of Gretna.92
1. Individual Capacity Claims Against Lawson and Christiana
The parties do not dispute that employees are entitled to protection for the exercise of their
First Amendment rights. An employee of a public entity may not be discharged for exercising his
First Amendment right to freedom of expression, despite an at-will employment status. 93
Moreover, an employee of a public entity may not be subjected to adverse employment action for
exercising his First Amendment rights to freedom of expression.94 “Adverse employment actions
are discharges, demotions, refusals to hire, refusals to promote, and reprimands.”95 To succeed on
a Section 1983 claim against an official in his or her individual capacity, a plaintiff must “establish
that the defendant was either personally involved in the deprivation or that his wrongful actions
were causally connected to the deprivation.” 96 This standard requires more than conclusory

90

Rec. Doc. 10 at 5–15.

91

Id. at 19.

92

Id. at 17.

93

Cabrol v. Town of Youngsville, 106 F.3d 101 (5th Cir. 1997); Thompson v. City of Starkville, Miss., 901
F.2d 456 (5th Cir. 1990); Brawner v. City of Richardson, Tex., 855 F.2d 187 (5th Cir. 1988).
94

Id.

95
Breaux v. City of Garland, Tex., 205 F.3d 150, 157 (5th Cir. 2000); Hays v. LaForge, 113 F.Supp.3d 883
(N.D. Miss. 2015).
96

Jones v. Lowndes County, 678 F.3d 344, 349 (5th Cir. 2012) (quoting James v. Texas Collin County, 535
F.3d 365, 373 (5th Cir. 2008)).

15

assertions.97 “Plaintiffs suing governmental officials in their individual capacities…must allege
specific conduct [and] facts giving rise to a constitutional violation.”98
Defendants concede that the Complaint likely states a sufficient First Amendment claim
regarding the City of Gretna, but Defendants contend that the Complaint contains no specific
allegations whatsoever that any action of either Lawson or Christiana violated Plaintiff’s First
Amendment rights.99 Defendants claim that Plaintiff’s conclusory assertions against Lawson and
Christiana are insufficient to state a claim against them.100 Thus, this Court’s inquiry is focused
on the conduct that Plaintiff alleges and whether this alleged conduct violated his First Amendment
right.
According to the Complaint, Plaintiff was employed as a police officer with the Gretna
Police Department from April 2006 until January 13, 2017, when he resigned as sergeant within
the Patrol Division.101 Plaintiff claims that an “arrest and citation quota system” has been in place
within the Gretna Police Department since at least 2007.102 Plaintiff alleges that as part of his
duties as a supervisory official, he was directed to issue formal disciplinary actions in the form of
“write-ups” to patrol officers for “unsatisfactory performance” when these officers would fail to
meet the departmental quota.103 Plaintiff claims that at the time he was employed by the City of

97

Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002).

98

Id.

99

Rec. Doc. 6-1 at 2.

100

Id. at 3.

101

Rec. Doc. 1 at 2–3.

102

Id. at 3.

103

Id. at 3–4.

16

Gretna, he was aware that departmental quotas were illegal for police officers.104
Plaintiff alleges that he was “twice issued discipline in the form of a write up for
unsatisfactory performance for failure to meet the department quota.”105 Plaintiff also claims that
he refused to issue discipline to his patrol officers for failure to adhere to the departmental quota
policy.106 According to the Complaint, Plaintiff spoke out against the policy multiple times with
individuals both inside and outside of the Department, including Christiana directly.107 Plaintiff
claims that due to his outspokenness against the quota policy, he was passed up for promotion
multiple times, reassigned to a less prestigious and lucrative position, and received a poor
performance review.108 Specifically, Plaintiff alleges he was told he was not a “team player” and
was labeled as a “rat” in a division meeting.109 Plaintiff claims that his resignation was ultimately
a result of a constructive discharge and that he left the Department because he was afraid he would
be terminated, which would detrimentally impact his future career in law enforcement.110
However, noticeably absent from these allegations are any reference to the conduct of
Lawson or Christiana. The sole reference to Lawson in the Complaint states: “In 2007 Arthur
Lawson was the Chief of the Gretna Police Department and has remained in this capacity until

104

Id. at 5.

105

Id. at 4.

106

Id. at 5.

107

Id. at 6–7.

108

Id. at 7–8.

109

Id. at 5.

110

Id. at 3.

17

present day.”111 And the sole reference to Christiana in the Complaint states: “In August 2016, I
spoke out to Deputy Chief, Anthony Christiana, of internal impropriety within the Gretna Police
Department, the existing unlawful quota system and policy and an incident of police brutality.”112
The alleged facts do not show a violation of Plaintiff’s constitutional rights by either Lawson or
Christiana.
In opposition to this motion, Plaintiff states that “[b]oth the Chief of Police, Arthur Lawson
and Deputy Chief Anthony Christiana had the authority to issue adverse employment action
against Plaintiff.”113 Plaintiff also states that the directive to implement the alleged quota system
at issue “came from the Chief.” 114 Plaintiff then states that “official[s] of the Gretna Police
Department, including [Lawson] and [Christiana] knew that Plaintiff was speaking out against the
Gretna Police Department’s illegal activities.”

115

Therefore, Plaintiff asserts that “upon

information and belief they did in fact take adverse employment action against him in the form of
a demotion and institution of a criminal investigation against him, ultimately constructively
discharging him from his position as a Gretna Police Officer.”116 But Plaintiff does not allege
specific facts in the Complaint that support these claims and show what adverse employment
action both individual defendants took against him. “Adverse employment actions are discharges,

111

Id. at 4.

112

Id. at 6.

113

Rec. Doc. 10 at 6.

114

Id. at 7.

115

Id.

116

Id. at 8.

18

demotions, refusals to hire, refusals to promote, and reprimands.”117 The mere authority to issue
an adverse employment action is not enough to bring a claim against an individual, Plaintiff must
allege facts specific to each Defendant’s conduct that show the defendant’s involvement in an
adverse employment action, beyond a mere conclusory statement regarding that defendant’s
authority to effect an adverse employment action. Accordingly, Plaintiff has not carried his burden
of alleging facts that would overcome the pleading standard under Rule 12(b)(6) or that would
overcome a qualified immunity defense.
Plaintiff requests that “should the [Court] determine the need for more specificity in his
allegations that he be allowed to amend his complaint.”118 The Court recognizes that a motion to
dismiss for failure to state a claim is “viewed with disfavor and is rarely granted.”119 Short of
granting a motion to dismiss, a court may grant Plaintiff leave to amend the complaint. 120
Therefore, the Court will grant the Plaintiff leave to amend the Complaint to address the
deficiencies noted herein. In granting leave to amend, the Court says nothing about the viability of
amendments proposed by Plaintiff in the opposition to the instant motion.121
Additionally, the Fifth Circuit in Schultea v. Wood explained that once a defendant asserts
qualified immunity, a district court may order the plaintiff to submit a reply pursuant to Federal
Rule of Civil Procedure 7(a)(7), after evaluating the complaint under the ordinary pleading

117

Breaux, 205 F.3d at 157 (5th Cir. 2000).

118

Rec. Doc. 10 at 8.

119

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

120

See Carroll v. Fort James Corp., 470 F.3d 1171, 1175 (5th Cir. 2006) (quoting Dussouy v. Gulf Coast
Inv. Corp., 660 F.2d 594, 597–98 (5th Cir. 1981)).
121

See Rec. Doc. 10 at 8–9.

19

standard.122 Therefore, the Fifth Circuit has generally found that, when faced with a motion to
dismiss, a district court ought to allow a plaintiff to file a Rule 7(a)(7) reply before dismissing a
case on the basis of qualified immunity.123 Pursuant to Schultea, this reply “must be tailored to the
assertion of qualified immunity and fairly engage its allegations.”124 Accordingly, considering this
precedent, the Court will deny Defendants’ motion to dismiss to the extent it seeks dismissal of
the individual capacity claims against Lawson and Christiana in their individual capacities based
on a defense of qualified immunity and grant Plaintiff leave to amend his complaint to allege facts
“tailored to an answer pleading the defense of qualified immunity.”125
2.

Respondeat Superior

Plaintiff does not dispute that Lawson and Christiana may not be held liable on a theory of
respondeat superior. Generally, to be liable under Section 1983, a supervisor must be personally
involved in the act causing the alleged constitutional deprivation, or must have implemented a
policy so deficient that the policy itself acts as a deprivation of constitutional rights. 126 A
supervisor that is not personally involved in the acts that deprived the plaintiff of his constitutional
rights is liable under Section 1983 only if: 1) the sheriff failed to train or supervise the officers

122

Schultea v. Wood, 47 F.3d 1427, 1432 (5th Cir. 1995).

123

See Todd v. Hawk, 66 F.3d 320 (5th Cir. 1995) (“Schultea makes it clear that this two-step process—
requiring the plaintiff to file a short and plain statement of his claim pursuant to Rule 8(a)(2) followed by a more
particularized reply pursuant to Rule 7—is the preferred procedure preceding consideration of a motion to dismiss
on grounds of qualified immunity.”).
124

Schultea v. Wood, 47 F.3d at 1433.

125

Id. at 1433.

126

Cronn v.Buffington, 150 F.3d 538, 544 (5th Cir. 1998); Thompkins v. Belt, 828 F.2d 298,303-04 (5th
Cir. 1987); Alton v. Texas A & M University, 168 F.3d 196, 200 (5th Cir. 1999).

20

involved; 2) there is a causal connection between the alleged failure to supervise or train and the
alleged violation of the plaintiffs rights; and 3) the failure to train or supervise constituted
deliberate indifference to the plaintiff’s constitutional rights. 127 Proof of more than a single
instance of the lack of training or supervision causing a violation of constitutional rights is
normally required before such lack of training or supervision constitutes deliberate indifference.128
The plaintiff must generally demonstrate at least a pattern of similar violations.129 Furthermore,
the inadequacy of training must be obvious and obviously likely to result in a constitutional
violation.130 To the extent that Plaintiff brings a claim against Lawson or Christiana based on a
theory of respondeat superior, such a claim is dismissed with prejudice, because Plaintiff does not
properly allege a failure to train and does not dispute Defendants’ assertion that Lawson and
Christiana cannot be held liable under a theory of respondeat superior.
3.

Official Capacity Claims against Lawson and Christiana

Further, Plaintiff’s claims against the officers in their official capacity fails because it is
duplicative of his claim against the City of Gretna. In Kentucky v. Graham, the Supreme Court
held that an official capacity suit is “only another way of pleading an action against an entity of
which an officer is an agent” and is to be treated as a suit against the entity.131 The Fifth Circuit

127

Thompson v. Upshur County. 245 F.3d 447, 458-59 (5th Cir. 2001) citing Smith v. Brenoettsy, 158 F.3d
908, 911-12 (5th Cir. 1998), Doe v. Taylor Independent School District, 15 F.3d 443, 452-54, n.7-8 (5th Cir. 1994)
(en banc); Hinshaw v. Doffer, 785 F.2d 1260, 1263 (5th Cir. 1986).
128

Id. (citing Snyder v. Trepagnier, 142 F.3d 791, 798–99 (5th Cir. 1998); Belt, 828 F.2d at 304–305)

129

Id. (citing Snyder, 142 F.3d at 798)

130

Id. (citing City of Canton, 109 S.Ct. at 1205 n.10 (1989); Snyder, 142 F.3d at 799).

131

473 U.S. 159, 165 (1985).

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has enforced an identical rule and barred claims brought in a single action against official capacity
individuals and against the entity of which they are members. In Sims v. Jefferson Downs Racing
Association, Inc., the Fifth Circuit held that, due to the nature of official capacity suits, a judgment
against a corporation and its officer would “effectively make the corporation liable twice for the
same act.” 132 Moreover, a judgment against an individual acting in an official capacity and
against the entity that employs him on the same claim is equivalent to a judgment against the entity
twice over, and is therefore barred by virtue of subjecting a defendant-entity to “duplicative” or
“redundant” liability.133 However, separate claims brought against an official and his entity in the
same action are permitted and governed by the general rules of pleading.134
To the extent Plaintiff asserts Section 1983 claims against Defendants Lawson and
Christiana in their official capacities, those claims appear to mirror the Section 1983 claim against
the City of Gretna—that Plaintiff’s constitutional right to free speech was violated by the Gretna
Police Department’s discipline and constructive discharge of Plaintiff for speaking out against the
quota system, pursuant to the Department’s policy of implementing a quota system. As previously
stated, the Fifth Circuit has held that such actions are barred by virtue of subjecting a defendantentity to “duplicative” or “redundant” liability.135 Accordingly, Plaintiff was required to clarify in
his pleadings if he is in fact asserting different claims against Lawson and Christiana in their
official capacities and the City of Gretna, otherwise, the Court must dismiss one of the duplicative
132

778 F.2d 1068, 1081 (5th Cir. 1985).

133

See Indest v. Freeman Decorating, Inc., 164 F.3d 258, 262 (5th Cir. 1999); see also Castro Romero v.
Becken, 256 F.3d 349, 355 (5th Cir. 2001).
134

Id.

135

Indest, 164 F.3d at 262; Romero, 256 F.3d at 355.

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claims or sets of claims. As Plaintiff has not clarified any difference in claims, the Court will
dismiss the Section 1983 claims against Defendants Lawson and Christiana in their official
capacities, and proceed with analysis of Plaintiff’s Section 1983 First Amendment claim against
the City of Gretna.
4.

Request for Punitive Damages

Plaintiff seeks punitive damages against the City of Gretna and Lawson and Christiana in
their individual capacity. 136 However, as Plaintiff recognizes in his opposition to the instant
motion,137 Section 1983 does not allow for the recovery of punitive damages against a municipal
entity.138 Therefore, the request for punitive damages as to the City of Gretna is dismissed with
prejudice. To the extent Defendants seek dismissal of Plaintiff’s request for punitive damages
against individual defendants Lawson and Christiana, the Court will deny the motion at this time
as the Court has granted Plaintiff leave to amend the Complaint with respect to the claims against
the individual defendants.
B.

Plaintiff’s Louisiana Whistleblower Act Claim
Finally, Defendants seek dismissal of Plaintiff’s Louisiana Whistleblower Act claim

against the individual defendants, because Defendants contend that Lawson and Christiana are not
employers under the Louisiana Whistleblower Act.139 In opposition, Plaintiff argues that Lawson

136

Rec. Doc. 1 at 10.

137

Rec. Doc. 10 at 17.

138

Collier v. Roberts (M.D. La., 2015) (citing City of Newport v. Fact Concerts, Inc., 453 U.S. 247 101
S.Ct. 2748, 69 L.Ed.2d 616 (1981).
139

Rec. Doc. 6-1 at 8–9.

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and Christiana are “employers” for the purposes of the present case.140
Louisiana Revised Statute 40:2401.1(A) states:
No municipality or any police department thereof, nor any parish or any sheriff's
department thereof, shall establish or maintain, formally or informally, a plan to
evaluate, promote, compensate, or discipline a law enforcement officer on the basis
of the officer making a predetermined or specified number of any type or
combination of types of arrests or require or suggest to a law enforcement officer,
that the law enforcement officer is required or expected to make a predetermined
or specified number of any type or combination of types of arrests within a specified
period.
Section (B) of the statute likewise prohibits police departments from establishing traffic citation
quotas.
Louisiana Revised Statute 23:967(A) states, in pertinent part: “An employer shall not take
reprisal against an employee who in good faith, and after advising the employer of the violation of
law: (1) Discloses or threatens to disclose a workplace act or practice that is in violation of state
law . . . (3) Objects to or refuses to participate in an employment act or practice that is in violation
of law.” Under Section 23:967(C)(1), “reprisal” includes firing. Section 23:967(B) states: “An
employee may commence a civil action in a district court where the violation occurred against any
employer who engages in a practice prohibited by Subsection A of this Section. If the court finds
the provisions of Subsection A of this Section have been violated, the plaintiff may recover from
the employer damages, reasonable attorney fees, and court costs.”
The question here is whether Lawson and Christiana are “employers” within the definition
of the statute. Although the statute itself does not define “employer,” courts have consistently
applied the definition of “employer” as set forth in La. Rev. Stat. § 23:302, Louisiana’s general

140

Rec. Doc. 10 at 17–18.

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employment discrimination statute.141 According to La. Rev. Stat. § 23:302, “employer” means “a
person, association, legal or commercial entity, the state, or any state agency, board, commission,
or political subdivision of the state receiving services from an employee and, in return, giving
compensation of any kind to an employee.”
It is clear in the instant case that Lawson and Christiana are not Plaintiff’s employer, but
rather agents of his employer: the City of Gretna. Therefore, the state law claims against Lawson
and Christiana are dismissed with prejudice. The state law claim against the City of Gretna
remains.
IV. Conclusion
While Defendants concede that Plaintiff brings a sufficient claim against the City of
Gretna, Plaintiff has failed to meet the pleading standard under Rule 12(b)(6) regarding individual
Defendants Lawson and Christiana because Plaintiff has failed to state facts upon which relief can
be granted. Nevertheless, the Court will deny the motion to dismiss the individual capacity claims
at this time and grant Plaintiff leave to amend his complaint and cure those deficiencies. Further,
as Plaintiff has not alleged facts that can overcome a qualified immunity defense, pursuant to Fifth
Circuit precedent, the Court will allow Plaintiff to file a Rule 7(a)(7) reply tailored to the qualified
immunity defense.
To the extent that Plaintiff brings a Section 1983 claim against Lawson and Christiana
under a theory of respondeat superior, the Court dismisses such a claim. Furthermore, the Court

141

See, e.g., English v. Wood Group PSN, Inc., No. 15-568, 2015 WL 5061164, at *10-11 (E.D. La. Aug.
25, 2015); Langley v. Pinkerton's Inc., 220 F. Supp. 2d 575, 580 (M.D. La. 2002) (the full definition of 23:302
applies to 23:967 regardless of the fact that 23:967 is found in Chapter 9 rather than in 3—A); Johnson v. Hosp.
Corp. of America, 767 F. Supp. 2d 678, 691 n. 2 (W.D. La. 2011).

25

dismisses any official capacity claims brought against Lawson and Christiana under Section 1983
because they are duplicative to the claims against the City of Gretna. Additionally, the Court
dismisses any request for punitive damages against the City of Gretna under Section 1983 because
of well-established law barring such a claim.
Finally, the Court dismisses, with prejudice, Plaintiff’s Louisiana Whistleblower Act
claims against Lawson and Christiana because they do not qualify as “employers” within the
definition of the statute. Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss142 is GRANTED IN
PART to the extent that Plaintiff’s Section 1983 claims against Lawson and Christiana based on
a theory of respondeat superior and in their official capacity, Plaintiff’s Louisiana Whistleblower
Act claims against Lawson and Christiana, and Plaintiff’s request for punitive damages against the
City of Gretna are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the Motion to Dismiss is DENIED in all other
respects. Plaintiff is granted leave to file a Rule 7(a)(7) reply as to Plaintiff’s Section 1983 claims
against Lawson and Christiana in their individual capacities and to amend the complaint within
fourteen days of this Order to cure the deficiencies noted, if possible.

7th
NEW ORLEANS, LOUISIANA, this _____ day of January, 2019.

________________________________
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

142

Rec. Doc. 6.

26