Lewis v. Gautreaux et al

Filing 72

RULING AND ORDER denying as moot 48 Motion to Dismiss for Failure to State a Claim. Signed by Judge John W. deGravelles on 05/31/2017. (NLT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
ADRIENNE LEWIS, by and on behalf of
the minor child, LIYAH ALEXANDRIA
JOHNSON
CIVIL ACTION
v.
NO. 16-352-JWD-RLB
EAST BATON ROUGE PARISH, ET AL.
RULING AND ORDER
This matter comes before the Court on the Motion to Dismiss (Doc. 48) filed by
Defendants, Corporal Robb and Sargent Broadway. The motion is opposed. (Doc. 53.)
Defendants Robb and Broadway have filed a reply. (Doc. 54.) Oral argument is not necessary.
The Court has carefully considered the law, the facts in the record, and the arguments and the
submissions of the parties and is prepared to rule. For the following reasons, the motion is
denied as moot.
In the instant motion, Defendants Robb and Broadway seek to dismiss “i.) Plaintiff’s
Section 1983 claims against Corporal Robb and Sargent Broadway in their official capacities;
[and] ii.) Plaintiff’s claim for punitive damages against Corporal Robb and Sargent Broadway in
their official capacities.” (Doc. 48 at 1.) However, Plaintiff specifically represents in her
opposition: “Plaintiff’s Amended Complaint does not state any claim against Defendants Robb
and Broadway in their official capacities. Plaintiff does, however, state claims against them for
illegal and unconstitutional acts alleged to have been performed in their individual capacities.”
(Doc. 53 at 5.) As a result, because Plaintiff is not making the claims these Defendants are
seeking to dismiss (i.e., claims against them in their official capacity), there are no such claims to
dismiss, and the instant motion should be denied as moot.

However, the Court notes that the Plaintiff will be entitled to take discovery on the issue
of whether there has been any sort of delegation of policymaking authority to Defendants Robb
and Broadway. “[W]hether an official has been delegated final policymaking authority is a
question of law for the judge, not of fact for the jury.” Gros v. City of Grand Prairie, Tex., 181
F.3d 613, 617 (5th Cir. 1999) (citing Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 737, 109 S. Ct.
2702, 105 L. Ed. 2d 598 (1989)) (reversing district court's decision that plaintiffs survived
summary judgment because there was an issue of fact as to whether chief of police was delegated
final policymaking authority). But see Bouman v. Block, 940 F.2d 1211, 1231 (9th Cir. 1991)
(remanding case to district court because, in addition to depending on issues of law, “the
question whether the Board of Supervisors delegated to the Sheriff's Department the authority to
make employment policy decisions involves unresolved issues of fact as well, and the district
court made no factual findings with respect to such issues”); Kujawski v. Bd. of Comm'rs of
Bartholomew Cty., Ind., 183 F.3d 734, 739 (7th Cir. 1999) (reversing granting of summary
judgment because “we believe that there remains a genuine issue of fact as to whether the Board
had, as a matter of custom, delegated final policymaking authority to Parker with respect to
community corrections employees”). Further, a “district court should . . . determine[] whether
any such delegation had occurred as a matter of state law.” Gros, 181 F.3d at 617.
Nevertheless, “[t]he sources of state law which should be used to discern which
municipal officials possess final policymaking authority are ‘state and local positive law, as well
as “custom or usage” having the force of law.’ ” Gros, 181 F.3d at 616 (quoting Jett, 491 U.S. at
737, 109 S. Ct. 2702). Thus, in Gros, after explaining that “depositions were available to the
district court as potential evidence of municipal customs or usages having the force of state law,”
the Fifth Circuit stated: “It was thus incumbent upon the district court to consider state and local

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positive law as well as evidence of the City's customs and usages in determining which City
officials or bodies had final policymaking authority over the policies at issue in this case.” Gros,
181 F.3d at 616. The Fifth Circuit also noted (without definitively resolving the question):
The Supreme Court has rejected the principle of a “de facto” policymaker. See [City
of St. Louis v. Praprotnik, 485 U.S. 112, 131, 108 S. Ct. 915, 99 L. Ed. 2d 107
(1988)]. Nonetheless, absent a contrary regulation or ordinance, a city council's or
city manager's continuous refusal to exercise some theoretical authority to review
a municipal official's policy decisions will, at some point, establish the municipal
official as the final policymaking authority by custom or usage having the force of
state law.
Gros, 181 F.3d at 616. All of this leads the Court to the conclusion that Plaintiff is entitled to
conduct discovery to determine whether Defendants Robb and Broadway had, by virtue of
“ ‘custom or usage’ having the force of law,” final policymaking authority.
Moreover, should this discovery reveal a possible claim against Defendants Robb and
Broadway in their official capacity, Plaintiff would likely be granted leave to amend her
complaint to assert such a claim. This would be the rule if the Court had granted the instant
motion and dismissed Plaintiff’s official capacity claim with prejudice. See Brazier v. Great
Atlantic & Pacific Tea Co., 256 F.2d 96, 99 (1958) (stating that, regardless of whether the
district court states in the judgment that the dismissal was with or without prejudice, this did not
change the rights that the plaintiff had to bring a new action “if new facts should be
discovered”); 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §
2373 (3d ed. 2017) (“Some courts have held that if new facts come to the attention of someone
who has been dismissed under Rule 41(b), or that person alleges new facts for the first time, and
it was the absence of these facts that made the first complaint defective, the earlier dismissal will
not bar a second action.”). The Court believes a similar result would be warranted here.
Accordingly,

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IT IS ORDERED that the Motion to Dismiss (Doc. 48) filed by Defendants, Corporal
Robb and Sargent Broadway is DENIED AS MOOT.
Signed in Baton Rouge, Louisiana, on May 31, 2017.

S
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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