Whiticar v. New Orleans City et al
ORDER AND REASONS: IT IS ORDERED that 8 Motion to Dismiss pursuant to Rules 12(b)(1) and (6), filed by the City of New Orleans on behalf of itself and the Sixth, Seventh, and Eighth Districts of the New Orleans Police Department is GRANTED as to all federal claims as set forth in document. Party New Orleans City, Police Department's (6th District), (7th District) and (8th District) are dismissed. Signed by Judge Jay C. Zainey on 10/7/2019. (ajn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NEW ORLEANS CITY, ET AL.
SECTION “A” (3)
ORDER AND REASONS
The following motion is before the Court: Motion to Dismiss (Rec. Doc. 8) pursuant
to Rules 12(b)(1) and (6). This motion was filed by the Defendant City of New Orleans (“the
City”) on behalf of itself and the Sixth, Seventh, and Eighth Districts of the New Orleans Police
Department (“NOPD”). Plaintiff Mark Whiticar opposes the motion. (Rec. Doc. 12, Plaintiff’s
Opposition). The motion, submitted for consideration on September 4, 2019, is before the
Court on the briefs without oral argument.
Whiticar filed this suit pro se on May 13, 2019. (Rec. Doc. 1, Plaintiff’s Complaint).
This complaint stems from an incident where Whiticar’s daughter caused him $25,000 worth
of property damage by setting his home on fire. (Rec. Doc. 12, p. 3, Plaintiff’s Opposition).
Before this incident occurred, Whiticar tried to have his daughter arrested multiple times. Id.
He first contacted the NOPD “to get them to arrest my daughter for abusing my granddaughter
and making her attempt suicide 3 times,” but the NOPD “didn’t follow through or pursue her
in any way.” Id. at 3. Whiticar then reported his daughter a second time to the NOPD after
she “unlawfully entered [into] my Son’s apartment while he wasn’t home and took some of
his money.” Id. Although Whiticar received a police report with an item number this time,
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“there was still no warrant for her arrest for destruction of my Son’s property and theft of his
Lastly, things came to a head on the night of July 29, 2018 when Whiticar’s neighbors
called the police to report that they saw, “[the] plaintiff’s daughter and another male individual
climbing the fence onto plaintiff’s property[.]” Id. at 4. An officer eventually arrived on the
scene and detained Whiticar’s daughter, but she was quickly released. Id. Once the officer
left the scene, Whiticar’s property quickly turned into a “big blaze.” Id. Subsequently, Whiticar
filled his Complaint “charg[ing] the City of New Orleans and [the NOPD] with Negligence in
not doing their Duty of arresting my daughter and allowing her to come from New Orleans
East, Uptown and Downtown to set my home on Fire.” Id.
In response to Whiticar filing his Complaint, the City now moves this Court on behalf
of himself and the NOPD to dismiss this case pursuant to Federal Rules of Civil Procedure
(“FRCP”) 12(b)(1) and (6).
STANDARD OF REVIEW
A. Pro Se Litigant
Because Whiticar is proceeding pro se, the Court must construe his pleadings liberally.
Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir.1995). However, “[t]he right of self-representation
does not exempt a party from compliance with relevant rules of procedural and substantive
law.” Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.1981).
B. Rule 12(b) of the Federal Rules of Civil Procedure
“Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party
to challenge the subject matter jurisdiction of the district court to hear a case.” Ramming v.
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United States, 281 F.3d 158, 161 (5th Cir. 2001). “Lack of subject matter jurisdiction may be
found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented
by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed
facts plus the court's resolution of disputed facts.” Id. In a 12(b)(1) motion, the party asserting
jurisdiction bears the burden of proof that jurisdiction does in fact exist. Id.
Additionally, FRCP 12(b)(6) permits a court to dismiss a complaint when a plaintiff has
failed to state a claim for which relief can be granted. See Fed.R.Civ.P. 12(b)(6). “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.'” Iqbal v. Ashcroft, 556 U.S. 662, 677 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The factual matter contained
in the complaint must allege actual facts, not mere legal conclusions portrayed as facts. Id.
at 667 (“Although for the purposes of a motion to dismiss we must take all of the factual
allegations in the complaint as true, we 'are not bound to accept as true a legal conclusion
couched as a factual allegation.'”) (quoting Twombly, 550 U.S. at 555). Additionally, the
factual allegations of a complaint must state a plausible claim for relief. Id. A complaint states
a “plausible claim for relief” when the factual allegations contained therein, taken as true,
necessarily demonstrate actual misconduct on the part of the defendant, not a “mere
possibility of misconduct.” Id.; see also Jacquez v. Procunier, 801 F.2d 789, 791–92 (5th
Here, the City requests the Court to dismiss Whiticar’s claim because he fails to make
a cognizable claim against the City and the NOPD. (Rec. Doc. 8, p. 2, Defendant’s Motion to
Dismiss). More particularly, Whiticar’s original Complaint merely alleged that, “I charge the
City of New Orleans and [the NOPD] with Negligence in not doing their duty of arresting my
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daughter and allowing her to come from New Orleans East, Uptown and Downtown to set my
home on fire.” (Rec. Doc. 1, p. 5, Plaintiff’s Complaint). However, in his Opposition to this
Motion to Dismiss, Whiticar attempted to refine his argument by claiming his due process
rights were violated because, “the right NOPD violated was protected by clearly established
law as its marked patrol vehicles conveys to the public their duty to protect and serve.” (Rec.
Doc. 1, p. 7, Plaintiff’s Opposition). Further, in his Opposition, he claimed that the City and
the NOPD violated his equal protection rights because, “[b]ased upon extensive phone calls
and incident reports launched by plaintiff, NOPD treated plaintiff differently form others and
the denials of equal protection by municipal entity or any other person action under color of
state law are actionable under § 1983.” Id. Ultimately, his arguments are meritless, and the
following will show why the NOPD and the City are entitled to dismissal under FRCP 12(b)(1)
and (6) for Whiticar’s federal claims.
A. Whiticar’s Claims Against the NOPD
FRCP 17(b) provides that the capacity to sue or be sued is determined “by the law of
the state where the Court is located.” Fed.R.Civ.P. 17(b). Louisiana law therefore determines
the ability to sue the NOPD. In order to possess juridical capacity under Louisiana law, an
entity must qualify as a “juridical person.” Dugas v. City of Breaux Bridge Police Dep't, 19991320, p. 3 (La. App. 3 Cir. 02/02/00); 757 So. 2d 741, 743. Article 24 of the Louisiana Civil
Code provides in pertinent part that “[a] juridical person is an entity to which the law attributes
personality.” La. Civ. Code art. 24. Under Louisiana law, police departments are not juridical
entities capable of suing or being sued. See La. R.S. 33:361. Further, courts in this District
have consistently found that the NOPD lacks juridical capacity. See, e.g., Martin v. Davis, No.
06-1770, 2007 WL 763653, at *2 (E.D. La. Mar. 8, 2007). Because the NOPD is not capable
of being sued, the Court dismisses Whiticar’s federal claims against it.
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B. Whiticar’s § 1983 Claims Against the City
Section 1983 prescribes redress for conduct by any person who, under color of state
law, acts to deprive another person of any right, privilege, or immunity by the Constitution and
laws of the United States. 42 U.S.C. § 1983. Municipalities are “persons” within the meaning
of § 1983. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978). Under Monell,
municipalities can be held liable for constitutional violations which arise from enforcement of
the municipality's policies or procedures. Monell, 436 U.S. 658. Municipalities cannot,
however, be liable under § 1983 for the constitutional torts of their employees under the
doctrine of respondeat superior. Id. at 691.
To state a claim under § 1983, a plaintiff must (1) allege a violation of rights secured
by the Constitution or laws of the United States, and (2) demonstrate that the alleged
deprivation was committed by a person acting under color of state law.” Leffall v. Dallas
Independent School District, 28 F.3d 521, 525 (5th Cir. 1994). The first inquiry is whether
plaintiff has alleged a violation of a constitutional right at all. Id.; see also Piotrowski v. City of
Houston, 51 F.3d 512, 515 (5th Cir. 1995).
1. Due Process Constitutional Rights
The “Due Process Clause does not require a State to provide its citizens with particular
protective services.” DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 197
(1989). Therefore, “a State's failure to protect an individual against private violence does not
violate the Due Process Clause.” Id. However, DeShaney recognized that “in certain limited
circumstances the Constitution imposes upon the State affirmative duties of care and
protection with respect to particular individuals.” Id. at 198 (emphasis added). Such “special
relationship” cases arise when the state, “through the affirmative exercise of its powers, acts
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to restrain an individual's freedom to act on his own behalf.” See McClendon v. City of
Columbia, 305 F.3d 314, 324 (5th Cir. 2002).
Here, the City is not responsible under federal law for its alleged failure to protect
Whiticar’s property from his daughter’s destructive acts. Further, the “special relationship”
exception does not apply here because Whiticar was never incarcerated nor was he ever
under the City’s control. Thus, the Court finds that Whiticar’s due process rights were not
violated under the facts in this case.
2. Equal Protection Constitutional Rights
To state an equal protection claim, a § 1983 plaintiff must allege either 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.” Gibson v. Texas Dep't of Ins.—Div. of
Workers' Comp., 700 F.3d 227, 238 (5th Cir. 2012) (citations and internal quotation marks
Here, Whiticar’s equal protection rights were not violated. In his Opposition, Whiticar
only made a conclusory allegation that his equal protection rights were violated by saying
that, “[the] NOPD treated plaintiff differently from others and the denials of equal protection
by municipal entity or any other person acting under color of state law are actionable under §
1983.” (Rec. Doc. 12, p. 7, Plaintiff’s Opposition). This type of threadbare allegation is not
enough to show that Whiticar’s equal protection rights were violated. No facts in his Complaint
point to him being a member of a protected class or being treated differently than other
similarly situated community members. Thus, the Court finds that Whiticar’s equal protection
rights were not violated under the facts in this case.
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3. Monell Claim
Under Monell, Whiticar must show that the City, a Louisiana municipality, was acting
under color of state law at the time of the alleged acts. Further, Whiticar must show (1) the
existence of a municipal custom or policy; and (2) a direct causal link between the custom or
policy and the alleged violation. Monell, 436 U.S. at 694. Official policy can arise in various
forms. It usually exists in the form of written policy statements, ordinances, or regulations, but
may also arise in the form of a widespread practice that is “so common and well-settled as to
constitute a custom that fairly represents municipal policy.” Piotrowski, 237 F.3d at 579. A
policy is official only “when it results from the decision or acquiescence of the municipal officer
or body with final policymaking authority over the subject matter of the offending policy.” Jett
v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989).
Here, Whiticar cannot make a successful Monell claim under the facts in this case. For
instance, Whiticar argues in his Opposition that the NOPD’s duty to “protect and serve”
constitutes an official policy under Monell by saying, “when joining NOPD, law enforcement
officials must take an oath to protect and serve the public in general. Moreover, NOPD’s
marked patrol vehicles conveys [sic] this same message/oath as well, and is also embedded
into a phrase or clause of the City’s contract/policy.” (Rec. Doc. 12, p. 9, Plaintiff’s
Opposition). Whiticar then concludes by saying, “the official policy promulgated by the
municipality’s policymaker was the actual cause of the constitutional injury based upon the
breach (negligence) in failing to comply with its contract.” Id.
Whiticar’s argument is predicated on a mischaracterization of the legal principles
promulgated in Monell. More specifically, Monell requires that the constitutional violation be
a result of a municipal’s official policy, rather than the constitutional violation resulting from a
municipality violating its own official policy. See Piotrowski, 237 F.3d at 579 (5th Cir. 2001)
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(“Municipal liability for section 1983 violations results if a deprivation of constitutional rights
was inflicted pursuant to official custom or policy.”) (emphasis added). In other words,
Whiticar alleges that his constitutional rights were violated because the NOPD failed to follow
its own policy. However, this is merely a state law negligence claim instead of a §1983 Monell
Therefore, the Court finds that Whiticar’s constitutional rights were not violated under
the facts of this case, and the Court dismisses Whiticar’s federal claims against the City and
the NOPD under FRCP 12(b)(6).
WHITICAR’S STATE LAW CLAIMS
When all claims which conferred federal subject matter jurisdiction are dismissed, the
court may decline to exercise supplemental jurisdiction over the remaining state law claims.
28 U.S.C. § 1367(c); see Priester v. Lowndes County, 354 F.3d 414, 425 (5th Cir. 2004).
Here, to the extent that Whiticar’s Complaint makes any state law claims, the Court declines
jurisdiction over those claims. See 28 U.S.C. § 1367(c)(3).
AMENDING WHITICAR’S COMPLAINT
“Generally, . . . a pro se litigant should be offered an opportunity to amend his
complaint before it is dismissed.” Brewster v. Dretke, 587 F.3d 764, 767-68 (5th Cir. 2009).
However, granting leave to amend is not required when the plaintiff has already pleaded his
“best case.” Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir.1998). Here, it would be futile to
afford Whiticar an opportunity to amend his Complaint because there is simply no basis for a
§ 1983 claim under the facts of this case. In other words, Whiticar pleaded his “best case”
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IT IS ORDERED that the Motion to Dismiss (Rec. Doc. 8) filed by the City of New
Orleans on behalf of itself and the Sixth, Seventh, and Eighth Districts of the New Orleans
Police Department is GRANTED as to all federal claims. All federal claims asserted in this
action are dismissed with prejudice. Further, the court declines to exercise supplemental
jurisdiction over any state law claims Whiticar may have. Those claims are dismissed without
October 7, 2019
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE
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