Gomez v. Gautreaux et al

Filing 32

ORDER granting in part and denying in part 16 Motion to Dismiss for Failure to State a Claim. Signed by Judge James J. Brady on 07/01/2014. (CGP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

PEDRO GOMEZ
CIVIL ACTION
VERSUS
NO. 14-169-JJB-SCR
SID J. GAUTREAUX, ET AL.
RULING
This matter is before the Court on the defendants Sid J. Gautreaux, III, in his official
capacity as Sheriff for the Parish of East Baton Rouge; Deputy Cody Grace; and Deputy Frank
Zapata’s Motion (rec. doc. 16) to Dismiss. Subsequent to the filing of this motion, the plaintiff
submitted two amendments to his original complaint, in addition to filing an opposition to the
motion. Rec. docs. 21, 27, and 28. Jurisdiction is based on 28 U.S.C. § 1331. Oral argument is
not necessary. For the reasons provided herein, the Court GRANTS IN PART and DENIES IN
PART the defendants’ Motion (rec. doc. 16) to Dismiss.
Background
At the outset, the Court disregarded the affidavits that the plaintiff attempted to put
before this Court through attachments to his opposition. The following facts come from the
plaintiff’s original complaint and amendments, and these facts are taken as true for purposes of
this ruling. The plaintiff alleges that defendants Grace and Zapata were deputy sheriffs for the
Parish of East Baton Rouge. The plaintiff alleges that defendants Grace and Zapata “intentionally
and deliberately violated [the plaintiff’s] constitutional rights by inflicting injuries on [the
plaintiff] by throwing him down to the concrete walkway as he was entering his home; after
which the deputies began kicking him in his back and head while his hands were cuffed behind
his back.” Rec. doc. 27, p. 1. According to the complaint, the deputies took these actions despite

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the fact that the plaintiff “was not guilty of any criminal offense.” Rec. doc. 1, p. 2. The injuries
from the attack necessitated a hospital trip in an ambulance. Id.
In addition, according to the plaintiff, defendant Gautreaux, as the Sheriff of East Baton
Rouge Parish, did not enforce the rule or regulation that there must be an internal investigation if
deputies inflicted injuries during an arrest, and the refusal “represented execution of a policy
officially adopted that there would be no internal investigation of incidents where deputies
caused injuries that required medical treatment.” Rec. doc. 27, p. 1–2. Furthermore, the plaintiff
alleges that this policy was “the moving force that resulted in more injuries from excessive force
to minorities including the injuries to plaintiff which deprived Mr. Gomez and others of their
constitutional rights because deputies knew there would be no investigation.” Id. at p. 2. As a
result of these actions, the plaintiff filed the present lawsuit, alleging violations under 42 U.S.C.
§ 1983, 42 U.S.C. § 1985, and accompanying Louisiana state laws.
Analysis
1. Legal Standard
“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and
plain statement of the claim showing that the pleader is entitled to relief.’” Ashcroft v. Iqbal, 556
U.S. 662, 677−78 (2009). “[A] formulaic recitation of the elements of a cause of action will not
do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint that pleads facts
merely consistent with a defendant’s liability “stops short of the line between possibility and
plausibility.” Id. at 557. “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).
“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it

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demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.
(quoting Twombly, 550 U.S. at 555).
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a complaint for
“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When
reviewing the complaint, the court must accept “all well-pleaded facts as true and [view] them in
a light most favorable” to the non-moving party. Kramer v. Bisco, 470 F.App’x 246, 246 (5th
Cir. 2012) (per curiam). “[T]he tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). In order to survive a motion to
dismiss, the complaint must plead “enough facts to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570. “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.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556).
2. Official-Capacity Claim Against Sheriff Gautreaux
At the outset, the Court finds that the plaintiff failed to plead any fact alleging that Sheriff
Gautreaux actually participated in the alleged beating of the plaintiff. Accordingly, any claims
against Sheriff Gautreaux can only be “in his official capacity.” In Kentucky v. Graham, the
Supreme Court outlined the difference between individual-capacity and official-capacity suits:
Personal-capacity suits seek to impose personal liability upon a government
official for actions he takes under color of state law. Official-capacity suits, in
contrast, “generally represent only another way of pleading an action against an
entity of which an officer is an agent.” As long as the government entity receives
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notice and an opportunity to respond, an official-capacity suit is, in all respects
other than name, to be treated as a suit against the entity. It is not a suit against the
official personally, for the real party in interest is the entity. Thus, while an award
of damages against an official in his personal capacity can be executed only
against the official’s personal assets, a plaintiff seeking to recover on a damages
judgment in an official-capacity suit must look to the government entity itself.
473 U.S. 159, 165−66 (1985) (citations omitted). “A local government entity may be sued ‘if it is
alleged to have caused a constitutional tort through a policy statement, ordinance, regulation, or
decision officially adopted and promulgated by that body’s officers.’” Zarnow v. City of Wichita
Falls, 614 F.3d 161, 166 (5th Cir. 2010) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112,
121 (1988)) (internal quotation marks omitted). To impose liability upon Defendant Gautreaux,
in his official capacity, the plaintiff must show three elements: “a policymaker; an official
policy; and a violation of constitutional rights whose moving force is the policy or custom.” Id.
(quoting Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001)) (internal quotation
marks omitted). “More is required in an official-capacity action, . . . for a governmental entity is
liable under § 1983 only when the entity itself is a ‘moving force’ behind the deprivation; thus,
in an official-capacity suit the entity’s ‘policy or custom’ must have played a part in the violation
of federal law.” Id. at 167. There must be a “direct causal link between a municipal policy or
custom and the alleged constitutional deprivation.” City of Canton, Ohio v. Harris, 489 U.S. 378,
385 (1989).
As the acting Sheriff for the Parish of East Baton Rouge, Sheriff Gautreaux would be the
policymaker for the East Baton Rouge Parish Sheriff’s Office. Therefore, the real issue is
whether the plaintiff pleaded sufficient factual allegations regarding an “official policy” in order
to overcome the Rule 12(b)(6) motion. An “official policy” is:
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; or
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2. A persistent, 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. Actual or constructive knowledge of such 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 Houston, 735 F.2d 838, 841 (5th Cir. 1984). In the amended complaint, the
plaintiff’s sole allegation as to any official policy is that the refusal to conduct an internal
investigation “represented execution of a policy officially adopted that there would be no internal
investigation of incidents where deputies caused injuries that required medical treatment,” and
this policy was “the moving force that resulted in more injuries from excessive force to
minorities including the injuries to plaintiff which deprived Mr. Gomez and others of their
constitutional rights because deputies knew there would be no investigation.” Rec. doc. 27, p. 1–
2. The Court fails to see, based on the allegations, how this alleged policy could possibly be the
“moving force” behind the defendants’ alleged illicit action. Zarnow, 614 F.3d at 167. The Court
cannot find that the lack of an internal investigation could possibly be a “moving force” behind
an individual deputy proceeding to beat an unarmed individual without any provocation. Any
allegation that there is a “direct causal link” between the alleged policy of refusing to conduct
internal investigations and the beating defies belief. Canton, 489 U.S. at 385. Accordingly, the
Court must dismiss the plaintiff’s official-capacity claim against Sheriff Gautreaux.
3. Official-Capacity Claims Against Deputy Grace and Deputy Zapata
The plaintiff also asserts claims against defendants Grace and Zapata in their official
capacity. However, as there is no allegation that these defendants are policymakers, and there is
no indication that deputies within the East Baton Rouge Parish Sheriff’s Office would be
considered as such, the plaintiff failed to plead sufficient facts to state a claim for relief against
Deputy Grace and Deputy Zapata, in their official capacity.
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4. Individual-Capacity Claims Against Deputy Grace and Deputy Zapata
Nevertheless, the Court finds that the plaintiff pleaded sufficient facts to state a Section
1983 claim for relief against both defendant Grace and defendant Zapata, in their individual
capacities. The plaintiff alleges that, despite not committing a criminal offense, these defendants
threw “him down to the concrete walkway as he was entering his home” and kicked “him in his
back and head while his hands were cuffed behind his back.” Rec. doc. 27, p. 1. While the
plaintiff pleads violations of the Fourth, Fifth, and Fourteenth Amendment, the plaintiff is
seemingly averring that these officers utilized excessive force which resulted in the plaintiff’s
injuries. “To bring a § 1983 excessive force claim under the Fourth Amendment, a plaintiff must
first show that she was seized.” Flores v. City of Palacios, 381 F.3d 391, 396 (5th Cir. 2004)
(citing Graham v. Connor, 490 U.S. 386, 388 (1989)). “Next she must show that she suffered (1)
an injury that (2) resulted directly and only from the use of force that was excessive to the need
and that (3) the force used was objectively unreasonable.” Id. (citing Goodson v. City of Corpus
Christi, 202 F.3d 730, 740 (5th Cir. 2000)). Taking the factual allegations as true, the plaintiff
provided sufficient factual allegations to state a Section 1983 excessive-force claim for relief
against defendants Grace and Zapata, in their individual capacity. Additionally, at this time, the
Court cannot make any finding regarding whether these defendants are entitled to qualified
immunity. Accordingly, the Court finds that the plaintiff pleaded sufficient facts to state an
excessive-force claim against the defendants Grace and Zapata, in their individual capacity.
5. Section 1985 Claim
Furthermore, the plaintiff attempts to plead a conspiracy claim under 42 U.S.C. § 1985.
Of relevance to this case, “Section 1985(3) prohibits conspiracies to deprive a person of equal
protection of the laws or of equal privileges and immunities under the laws on the basis of race.”

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Jackson v. Biedenharn, 429 F.App’x 369, 372 (5th Cir. 2011). See also 42 U.S.C. § 1985(3). “To
state a claim under § 1985(3), a plaintiff must allege facts demonstrating (1) a conspiracy; (2) for
the purpose of depriving a person of the equal protection of the laws; and (3) an act in
furtherance of the conspiracy; (4) which causes injury to a person or a deprivation of any right or
privilege of a citizen of the United States.” Lockett v. New Orleans City, 607 F.3d 992, 1002 (5th
Cir. 2010) (citing Hilliard v. Ferguson, 30 F.3d 649, 652–53 (5th Cir. 1994)).
For the reasons stated in the defendants’ motion and reply, the Court finds that the
plaintiff failed to plead sufficient facts to state a 42 U.S.C. § 1985 claim. Rec. doc. 16-1, p. 5–8;
rec. doc. 31, p. 4. All of the relevant members of this “conspiracy” were East Baton Rouge
Parish Sheriff’s Office personnel. Accordingly, pursuant to the “intracorporate conspiracy
doctrine,” the plaintiff has failed to plead sufficient facts to assert a 42 U.S.C. § 1985 claim. See
Boyd v. Calcasieu Parish Sheriff’s Office, 2013 WL 1857448 (W.D. La. May 2, 2013).
6. Claim for Punitive Damages
The defendants seek to dismiss the plaintiff’s claim for punitive damages under Section
1983. After review, and taking the factual allegations as true, the Court finds that the plaintiff
pleaded sufficient facts to overcome the Rule 12(b)(6) motion to dismiss. If accurate, the
officers’ conduct in throwing the plaintiff down to a concrete walkway, and then proceeding to
kick him until he suffered injuries that required an ambulance trip to the hospital, could rise to
the level of reckless or callous indifference to the federally protected rights of others. Smith v.
Wade, 461 U.S. 30, 37 (1983).
7. State Law Claims
The defendants’ sole argument with regard to the plaintiff’s state law claims is that the
Court should decline to exercise supplemental jurisdiction over such claims. However, as there

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are remaining federal law claims, the Court retains supplemental jurisdiction over the plaintiff’s
Louisiana state law claims.
Conclusion
Therefore, the Court GRANTS IN PART and DENIES IN PART the defendants’
Motion (rec. doc. 16) to Dismiss, as provided herein.
Signed in Baton Rouge, Louisiana, on July 1, 2014.

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JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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